Private Clients, Trusts and Estates
Schiff Hardin's Private Clients, Trusts and Estates Group offers more than a century of experience and industry leadership in wealth transfer and succession planning. We bring to our clients the experience and depth of a large team of attorneys, supported by complementary, general service capabilities of our firm's lawyers in offices nationwide.
Five members of our group have been elected Fellows of the American College of Trust and Estate Counsel (ACTEC), the most distinguished professional organization in this field. Our practice is nationally ranked by Chambers USA, and the leader and deputy leader of our group recently were included among the "Top 100 Attorneys" when Worth magazine compiled such listings. Members of our group have authored numerous articles, widely distributed formbooks, and a nationally-published, two volume estate planning treatise.
We emphasize an individual approach for our wide range of clients nationwide. We are personal counselors, and we take very seriously our responsibilities as such. Our clients include:
- Business executives and investment fund managers
- Owners of privately held businesses
- Charitable organizations, both public and private
- Surviving spouses
- Families with multiple generations of wealth and family offices
- Banks, trust companies and individuals serving as executors and trustees
Not surprisingly, their needs and goals differ. We work with our individual clients to create unique estate plans that preserve assets and minimize taxes, both during their lives and for future generations.
Taxes are not the end of the analysis, however. We design estate plans that address the special concerns associated with specific assets — such as a family business or an art collection — in ways that achieve the client's goals. We also address the special needs of beneficiaries, such as those who cannot manage assets or who suffer from mental or physical disability. Not to be forgotten are protecting assets from creditors and providing incentives for younger generations to use their wealth wisely and in ways that contribute to their communities and society in general.
We make it a point to work closely with other family advisors and experts, including accountants, bankers, trust officers, financial planners, investment managers, insurance agents, valuation experts, family offices and other attorneys.
We have extensive experience working with multiple generation families.
An important aspect of our firm's practice involves the representation of wealthy families in the creation or reorganization of multi-generational trusts, partnerships, and corporations.
We have a nationwide practice.
Schiff Hardin attorneys are licensed to practice in 24 states and the District of Columbia, including several that are popular retirement destinations for our clients such as Florida, Arizona, Hawaii and other warmer weather states. Our Private Clients, Trusts and Estates Group serves clients throughout the United States, and we seek opinions and assistance, where appropriate, from local counsel in jurisdictions where we are not licensed.
We also counsel and educate banks and trust departments.
We include many banks and their trust departments among our clients. Over the years we have prepared an extensively annotated manual of will and trust forms for over twenty banks across the country, tailored in each case to local law. We conduct seminars and training programs for bank officers, attorneys, accountants and bank customers, and we advise banks directly on sensitive administration issues, including federal and state taxation, accounting, fiduciary duties, construction of will and trust documents and risk management.
Our capabilities include preparation of comprehensive, cover-to-cover policy and procedure manuals for trust departments in compliance with state and federal regulatory requirements. We customize the policies and procedures for the corporate structure and personnel that the trust department will use. In some cases, we provide ongoing advice to assist the bank's personnel in operating the trust department.
We teach and write about the law as well as practice it.
Our attorneys appear before groups nationwide. We teach at major law schools and at the National Trust School of the American Bankers Association, the leading national training school for trust officers. We publish on a wide range of topics involving taxation and wealth preservation for leading industry estate planning and trust periodicals. Our attorneys also serve on the editorial boards of Trusts & Investments and Estate Planning.
Trust and Estate Litigation
Effectively resolving complex trust and estate disputes requires not only a clear understanding of the substantive issues that are in play, but also a trial lawyer’s strategic judgment, procedural and evidentiary expertise, and ability to present a case to a judge or jury. So our trust and estate litigation practice pairs our nationally recognized Private Clients lawyers with a core group of full-time litigators who focus their practices on fiduciary matters.
Our trust and estate litigators have handled scores of fiduciary disputes in courtrooms across the country. We have successfully tried multi-million-dollar cases, we have set new precedent on appeal, and we have taught trust officers, in-house lawyers, and fellow practitioners. We pride ourselves on finding creative ways to resolve disputes before a lawsuit is filed, but when litigation cannot be avoided, we know the landscape and we know how to navigate it.
We have particularly in-depth experience representing corporate fiduciaries, who bring us their most sensitive trust and estate matters. We also regularly represent individual trustees and executors as well as trust and estate beneficiaries. Among the issues we have addressed are:
Fiduciary Liability Issues
- Closely held businesses – defense of fiduciary holding a controlling interest in a closely held business
- Duty of loyalty – defense of allegation of self-dealing and violation of the duty of loyalty between beneficiaries
- Petitions for instructions
- Statute of limitations for accountings
- Laches defense
- Estoppel defense
Questions of Jurisdiction
- Personal jurisdiction of state courts over non-resident beneficiaries
- Impact of foreign judgments
- Impact of prior pending cases on jurisdiction of state courts
- In rem jurisdiction
- Right to jury trial – legal vs. equitable actions
- Burden of proof on accountings
- Standing of contingent beneficiaries
- Standing of takers under powers of appointment
- Common law and statutory virtual representation
- Citation to enforce judgment against spendthrift trust
- Construction of spendthrift clause upon termination of trust
- Fraudulent conveyances
- Insolvent estates
- Contested incompetency proceeding
- Annulment of marriage by guardianship court
- Validity of deathbed estate planning changes, including burden of proof/fiduciary relationship issues
- Various complex trust construction issues
- Construction and enforceability of “no contest” clauses
- Allocation of assets in wrongful death action
- Conversions to total return trust
- Contested fee petitions for fiduciaries and attorneys
- Revocation of self-settled trusts by settlor on theory of undue influence
- Contested dissolution of statutory family partnerships
- Probate of photocopy of a will
- Severance of trusts
- Spousal renunciation against revocable living trust – illusory trusts
- Spendthrift trusts
- Contested heirship
Schiff Hardin attorneys represent individuals and fiduciaries in disputes with the Internal Revenue Service (IRS) concerning federal estate, gift and generation-skipping tax, individual fiduciary and income tax, and taxation of family business entities. We include among our attorneys former IRS and Department of Justice personnel who can assist at all stages of tax controversies from initial audit through contested court proceedings, if necessary. We have an excellent track record of resolving tax controversies privately and favorably to taxpayers.
We have dealt with a broad range of tax issues, including:
- Valuation of closely held operating businesses
- Valuation of interests in investment limited partnerships and LLCs, including valuation discounts
- Valuation of works of art and other unique personal property items
- Validity of two-life grantor retained annuity trusts (participating in the only case resulting in a taxpayer victory with this technique)
- Validity of preferred interest freezes in closely-held entities
- Exclusion of assets from taxable estate, including insurance, trusts and controlled family businesses
Schiff Hardin has an intense commitment to serving the legal needs of tax-exempt organizations, matched by significant experience and practice capabilities in this area.
Schiff Hardin, particularly through its Private Clients, Trusts and Estates Group and Tax Group, as well as other firm practice areas, provides comprehensive counsel to a wide array of public and private philanthropic, health care, medical and scientific research, housing, neighborhood redevelopment, cultural, artistic, civic, college and educational, and religious organizations, as well as social welfare organizations, trade associations and business leagues, business and housing cooperatives, and professional fundraisers. We have considerable experience in addressing income and excise tax rules, donation agreements, endowments, charitable trusts and other fund raising activities, including state regulation of such activities.
Our services involve skilled and experienced attorneys from most of the legal disciplines in which Schiff Hardin practices. A large percentage of our attorneys performs work related to tax-exempt organizations.
Specific Services to Tax-Exempt Organizations
Schiff Hardin provides practical and cost-effective advice in virtually every aspect of a tax-exempt organization's activities. Our attorneys thoughtfully take into account each organization's unique needs and concerns while providing a wide range of specific and sometimes highly complex services. We are regularly engaged to provide services that run the gamut from carefully crafting the structure of an organization at the time of formation to ongoing operations. Our services are specifically tailored to each organization's particular needs, including an emphasis on both the practical limitations tax-exempt organizations face, as well the more technical issues such as federal and state taxation, regulatory compliance, tax disputes and litigation.
Business Formation, Organization and Achievement of Tax-exempt Status
Schiff Hardin attorneys are experienced in all aspects of business start-up. We understand that decisions made during the formation process directly affect an organization's future success. Accordingly, we advise clients on structuring issues, including choice of entity structure and filing for tax-exempt status.
We also work with our clients to ensure full compliance with both state and federal laws, while counseling with respect to governance structures and best practices, including the application of Sarbanes-Oxley to the tax-exempt sector.
We regularly assist our clients with annual tax filings, public disclosure requirements, accounting issues, and various required employment and state corporate filings. Our attorneys monitor changes in activities to ensure continuing qualification for exemption and maintenance of public charity status. This includes such activities as lobbying, providing services, proposed transactions and foreign expenditures. We also counsel clients regarding activities involving charitable solicitation registration, as well as federal and state disclosures.
Real Estate Transactions
Tax-exempt organizations face unique challenges with respect to real estate issues. Schiff Hardin attorneys are sensitive to those needs and have significant experience in guiding organizations through matters arising from commercial and residential development (including long-term ground leases), the rent and sale of properties, debt financing, and private foundation ownership of real estate.
Governance and Operations
Schiff Hardin attorneys regularly provide counsel with respect to board composition and selection; director, officer and executive compensation; and board oversight of organizational activities. We also advise on board self-evaluations and fiduciary duties.
Our attorneys advise clients with respect to day-to-day operations, including fiscal agent agreements, publicity releases, licensing, employment/independent contractors, contracts, investment policy statements, conflict of interest policies, affiliation agreements, administration, and member relations.
Private Foundation Rules
Schiff Hardin attorneys are experienced in counseling clients on matters involving special rules for private foundations. Our attorneys regularly advise on issues concerning self-dealing, compensation and reimbursement, minimum distribution requirements, excess business holdings, jeopardizing investments, and taxable expenditures.
The ability to raise adequate funds is crucial to the success of an organization. Schiff Hardin attorneys have worked with boards of directors and management to guide and direct fund-raising goals. We have advised clients with respect to the following fund-raising issues and activities:
- Unrelated business income tax (UBIT)
- Charitable games (raffle, bingo, etc.)
- State registration for solicitation
- Professional fundraisers and fund-raising counsel
- Acknowledgment of gifts
- Public charity status
- Grant applications
- Corporate sponsorships
- Special events
- Affinity cards
- Planned giving and major gift programs
- Enforcing charitable pledges
We have also counseled professional fundraisers and professional fund-raising consultants with respect to state registration requirements, preparation of contracts, bonding and other compliance and filing requirements.
Our attorneys frequently assist organizations with donor contributions, including charitable remainder and lead trusts. We have advised on charitable gift annuities and pooled income funds, with respect to state and federal law compliance, and donor-advised funds. Our attorneys have also worked with clients to review and develop gift acceptance policies.
Schiff Hardin attorneys also have counseled donors with respect to charitable contributions, including donation of appreciated property, non-marketable assets, real estate interests (including environmental issues), and large gifts; donations to donor-advised funds, and split-interest trusts (including charitable remainder and charitable lead trusts); making of pledges; charitable gift annuities; and bequests and other deferred-giving techniques. We also have extensive experience with early termination of charitable remainder trusts.
To help our clients attract new donors, we frequently advise clients with respect to new endowment programs. We also counsel on governance and control of funds, creditor protection and restrictions on use. Our attorneys advise clients with respect to accounting issues and application of the Uniform Management of Institutional Funds Act.
Tax-Exempt Financing Opportunities
Schiff Hardin is nationally recognized bond counsel, well known for our experience, talent and creativity as bond counsel and counsel in other capacities in public finance transactions. Our attorneys have counseled clients
Our experience, knowledge, depth and talent in public finance allow us to serve in many different capacities in a broad array of public finance transactions.
Joint Ventures and Other Business Combinations
Joint ventures with for-profit businesses are common, but must be carefully structured. Schiff Hardin attorneys have experience structuring for-profit subsidiaries of nonprofits, partnerships involving for-profit and nonprofit entities, and mergers between nonprofits, including mergers of nonprofit and for-profit entities.
Schiff Hardin attorneys have experience in foreign transactions, including overseas grant-making, overseas direct expenditures, anti-terrorism rules, special withholding rules, and in establishing charitable organizations in foreign jurisdictions, as well as domestic "friends of" organizations.
Schiff Hardin attorneys are well versed in creating legal and enforceable asset protection programs for clients. These include domestic entities such as asset protection trusts, as well as off-shore entities. We also routinely advise clients on the use of trusts as part of their regular testamentary estate planning in order to provide enhanced asset protection for their families.
We are familiar with a broad range of asset protection techniques. One size does not fit all. Effective planning always requires consideration of the unique circumstances applicable to the client. For certain clients, simple changes in asset titling achieve the client's goals. In other situations, more complex structures are required.
As part of this process, we can recommend interviews with onshore financial institutions in states which have enacted asset protection trust legislation as well as offshore institutions.
International Estate Planning
Schiff Hardin's attorneys advise foreign individuals and corporations regarding the United States tax consequences of their investments in United States corporations and real estate and regarding tax planning opportunities that often are available only prior to becoming a resident or citizen of the United States. Conversely, we represent United States individuals and corporations in connection with the United States and foreign tax consequences of their foreign investments, residence and operations.
The interaction between the tax regimes of the United States and other jurisdictions requires a familiarity with the applicable tax treaties as well as an understanding of the domestic laws and tax rules in each jurisdiction. Because of our extensive work with clients with international relationships we have developed a network of foreign advisors familiar with the domestic tax rules of many jurisdictions. This network allows us to handle international planning situations thoroughly and efficiently.
Closely Held Family Businesses
Schiff Hardin attorneys understand the delicate balance between family and business concerns always confronted with family business. Our attorneys work with family owners and non-family executives in connection with transitions from older to younger generations and to facilitate other events and issues that impact family businesses such as:
- Management succession
- Tax leveraged transfer of ownership through focused estate planning
- Design of ownership and control structures that maintain family harmony
- Creating exit strategies for family members who no longer wish to participate in a family business
- Enhanced long-term control structures through entity reorganizations and the use of generation-skipping trusts
- Buy-sell and stock restriction agreements
- S-corporations, personal holding companies, family partnership, and LLCs
- Income tax planning
- Employee Stock Ownership Plans (ESOPs)
C-Level Executive Services
Schiff Hardin has a focused group of professionals working with highly compensated executives of public and private companies. Our practitioners have been recognized as leaders across the country as "personal general counsel" for Fortune 500 executives and successful entrepreneurs in private businesses.
- Attorney client privileged advice
- Executive compensation including wealth transference and securities law advice
- Tax minimization strategies
- Insurance and life insurance trusts, including "split-dollar" plans
- Comprehensive legacy planning
- Coordination of multiple professional services (e.g., accounting, investment management, insurance.)
Our customized process provides for planning over a timeline that takes an executive and her family through the major crossroads of life with the end goal of protecting the family's wealth and creating trusts and other legal structures that enhance family goals.
Many companies have recognized the need for this service and have arranged for Schiff Hardin attorneys to meet on a one-to-one basis with select key executives. In addition, companies have underwritten the costs of these services (or a significant portion) as part of a benefit package offered for those executives. We work with compensation committees and human resource departments to determine the best method for each company and executive.