Probate & Trust Law Section Conference Manual ... - Minnesota CLE

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STATE Ohio Rhode Island South Dakota Tennessee Texas DECANTING STATUTES as of May 8, 2013 CITE OHIO REV. CODE ANN. § 5808.18 RHODE ISLAND, R.I. GEN. LAWS § 18-4-31 (2012) S.D. CODIFIED LAWS §§ 55- 2-15 TO 55-2-21 TENN. CODE ANN. § 35-15- 816(B)(27) Proposed TEXAS TRUST CODE §§ 112.071-112.089 EFFECTIVE DATE 3/22/12 6/23/12 3/5/07 AMENDMENTS 2008, 2008, 2011, 3/2/12 and 3/25/13 PENDING CHANGES Amendments in S0286 introduced 2/2/13 and passed by Senate H5501 introduced 2/14/13 in Judiciary Committee 7/1/04 HB 873 Introduced 2/1/13 referred to Jurisprudence 2/25/13; Passed by House 5/2/13 Virginia VA. CODE ANN. § 64.2- 778.1 7/1/12 Wyoming W.S. 4-10-816(a)(xxviii) 7/1/13 2
ALTERNATIVE PLENARY Tax Issues (For the Non-Tax Specialist) for Small and Medium Size Estates Bryan Jamison Jamison & Jamison Shoreview The 2013 Probate & Trust Law Section Conference – June 10 & 11, 2013
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Sponsored by 2013 Probate & Trust L
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Minnesota CLE’s Copyright Policy
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Faculty & Planners* Jill A. Adkins
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Table of Contents Plenary Day 1 Non
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17. Marital Deduction Planning and
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PLENARY DAY 1 Non-Tax Case Law Upda
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1. *In re Estate of Neuman and In r
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3. Edwards v. Gillis ..............
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I. UNIFORM PROBATE CODE A. Effect o
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conceived until after decedent’s
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granddaughter. Ultimately, the cour
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the benefit of the person for whose
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814 MCA, which provides that a divo
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524.3-203, persons who are nominate
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also been the sole personal represe
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within the prescribed time set out
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mother’s estate, had breached fid
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plan. The court found that Brown wa
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power of attorney was, in fact, a l
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questions before the court were the
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E. Adverse Possession 1. *Jokela v.
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presumption. Finally, the court fou
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death, her daughter, in her capacit
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3. Estate of Nuo Djeljaj, 954 N.Y.S
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C. Trust Construction but that the
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4. *In the Matter of the Frank J. R
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adding the “general charitable in
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may provide that at least a substan
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including those created for the ben
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D. Spendthrift Clauses Finally, the
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decedent’s execution of a financi
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not negligent. On appeal, the court
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purchasing the insurance but determ
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H. Trust Accounting Disputes 1. Chu
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settlor’s death in 2005, the trus
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entitled to a jury trial because th
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other manner whatsoever disposing o
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the trial judge rejected - as highl
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F. Inter Vivos Gifts community over
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V. POWER OF ATTORNEY A. Improper Us
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FEDERAL TAX UPDATE Important Develo
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• The preferential rates for net
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3. Planning for the Wannabes: Deali
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Suppose, for example, that a marrie
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ESTATE AND GIFT TAX PLANNING AFTER
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after the first spouse’s death),
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First, they will want one or more g
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In Estate of Christiansen v. Commis
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Grandchild A 11,000 Grandchild B 11
Page 99 and 100: In the end, Wandry is correctly dec
Page 101 and 102: RECENT VALUATION CASE OF INTEREST (
Page 103 and 104: uncertainties, ahypothetical buyer
Page 105 and 106: So portability is achieved by givin
Page 107 and 108: (5) Special rules. (A) Election req
Page 109 and 110: million, and H2’s executor makes
Page 111 and 112: standard, but saves the rest for th
Page 113 and 114: THE IMAPCT OF WINDSOR ON ESTATE PLA
Page 115 and 116: Decanting: Refining an Old Vintage
Page 117 and 118: DECANTING: REFINING AN OLD VINTAGE
Page 119 and 120: XI. Trustee Liability .............
Page 121 and 122: D. Change Governing Law E. Trustee
Page 123 and 124: absolute discretion for some modifi
Page 125 and 126: K. Court Approval. Court approval i
Page 127 and 128: eliminate beneficiaries or change t
Page 129 and 130: precisely, to make certain exceptio
Page 131 and 132: appointment created under the new t
Page 133 and 134: If contributions to the original tr
Page 135 and 136: Qualified personal residence trusts
Page 137 and 138: enefit the beneficiaries by convert
Page 139 and 140: B. Notice Required. Other states re
Page 141 and 142: of the particular state, apparently
Page 143 and 144: tax consequences. See Tax Effects a
Page 145 and 146: (ii) at the time the exempt trust b
Page 147 and 148: BIBLIOGRAPHY Articles 1. Farhad Agh
Page 149: APPENDIX I STATE DECANTING STATUTES
Page 153 and 154: I. MINNESOTA ESTATE TAX - LIFETIME
Page 155 and 156: NOTE: In the examples below, I will
Page 157 and 158: At his death, he leaves the followi
Page 159 and 160: total federal gross estate (line 1)
Page 161 and 162: Note: in several of the examples ab
Page 163 and 164: C. Source of Charitable Gift - Ordi
Page 165 and 166: Many tax preparers relied on that r
Page 167 and 168: RESULT: •Because the amount paid
Page 169 and 170: III. DEDUCTION OF MORTGAGE INTEREST
Page 171: •Estates with net taxable assets
Page 189 and 190: 05/20/13 HOUSE RESEARCH ANALYST JM
Page 201 and 202:
SECTION 1 Funding Education: The Gi
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E. Five-Year Proration Required ...
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I. Saving and Paying for Higher Edu
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1. TAM 199941013. In Technical Advi
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. Estate Tax. Assuming that the don
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exclusion. If contributions to the
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distribute principal for GC’s ben
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sample trust language was used wher
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university, or (iii) making reasona
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treatment granted by section 529 wi
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and the beneficiary’s family duri
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eginning with the year of the contr
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Rule 5. If, by the due date for fil
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2. Attach Explanation. An explanati
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It is impossible for an account own
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were not making other gifts to thei
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a. Proposed Regulations Tax the Ben
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Prop. Treas. Reg. § 1.529-1(c). D.
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SECTION 2 Avoiding the Uncommon Dif
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2. Discouraging Bad Behavior ......
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problems in a document but so can a
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B. Who suffers from a drafting prob
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succeed to the preceding trustee’
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“ (a) Property a testator, while
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home. When devising recreational re
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to allow the beneficiary to pay off
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The remaining principal and any acc
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outright and free of trust. If eith
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D. Incentive Trusts 1. Encouraging
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that exemptions or deductions allow
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F. Family Business Succession. The
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3. Problems with Allocation of Fami
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SECTION 3 Unlimited Duration Trusts
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3. CONCLUSION .....................
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*In 1995, Delaware enacted legislat
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2. Exercise the power of appointmen
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ii. States: 1. Alaska 43 - 1,000 ye
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4. CONCLUSION vii. New Jersey viii.
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the “prudent man rule” required
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Additionally, many advisors are dra
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investment committee and/or distrib
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1. Significant change in asset allo
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Please see example below of a typic
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IV. DECANTING 1. INTRODUCTION Decan
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. States May Limit Trustee’s Auth
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V. VIRTUAL REPRESENTATION 1. INTROD
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ecome entitled to an interest, if i
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VI. PRIVACY OF COURT RECORDS 1. INT
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iii. Statutes c. South Dakota Proce
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VII. DOMESTIC ASSET PROTECTION AND
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property interests. 206 This can be
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11. EXTINGUISHMENT OF CREDITORS’
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13. SPENDTHRIFT TRUSTS As previousl
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SECTION 4 Drafting and Administerin
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1. Supplemental&SpecialNeedsTrust B
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iii. Discretionary Trust Trusts cre
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v. Vehicle One vehicle used to tran
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ii. Legal Guardian It is generally
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ii. SSA Determination Anyone receiv
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eimburse the State following the be
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else uses the computer from time to
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h. Revocable vs. Irrevocable i. Spe
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Qualified Disability Trust (QDT) ex
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(1) An inventory of Trust assets an
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Assistance benefits paid on behalf
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SECTION 5 Notable North Dakota Nuan
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I. North Dakota Real Property A. No
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a Statement of Claim is recorded by
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1. Any grantee or grantee’s autho
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By North Dakota Information Technol
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insolvent estates. Has priority ove
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(2) Would be a permissible distribu
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o North Dakota has two (2) pooled t
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G. The value of currently owned min
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* * * * * * * * * * * * * * lease r
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eceived, are not considered to be t
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disqualifying transfer provisions i
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ONLINE NORTH DAKOTA RESOURCES Title
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Table of Contents The Beauty and Bu
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--volatility in the financial marke
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For the trustee: If an individual t
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VII. Duty to keep records and provi
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specific information like their fin
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An alternative structure might be t
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--Intellectual property which may i
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SECTION 7 “Bleak House” Reviste
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PROBATE INSTITUTE 2013 HARD TIMES:
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TIP THREE: FOR REALLY BAD FIDUCIARI
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with disfavor on attempts to depriv
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E. Undue influence 1. Must prove te
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3. The Partition statute allows adm
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APPENDIX 524.3-720 EXPENSES IN ESTA
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owner of the real property or the o
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524.3-911PARTITION FOR PURPOSE OF D
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STATE OF MINNESOTA COUNTY OF MCLEOD
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5. For such other and further relie
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personal representatives determined
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notations in the memo portion indic
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Page 12 costs charged by private de
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The Well-Prepared Executive: Person
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Page 419 and 420:
Page 421 and 422:
Page 423 and 424:
Page 425 and 426:
Page 427 and 428:
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Stock Options: Sales, Gifts, & Tran
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the stock has been held for more th
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the initial appraisal is arranged f
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not property for purposes of Sectio
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emains the owner for income tax pur
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will also be treated as owning inte
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ealm of the estate tax. This is con
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eneficiary, as the case may be, wil
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CONFIDENTIAL Appendix
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Summary of Option Strategies 5. to
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Summary of Option Strategies 10. Co
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Transferring an asset via a GRAT re
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A CRT can result in greater total v
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IRA Rollback Strategy Pension Rescu
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Use Interest Rate Swaps to Lock in
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How does a 10b5-1 plan work? 1 2 3
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SECTION 9 Spousal Elections Under M
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1. INTRODUCTION Minnesota, as in ma
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. 1969 Version In the 1969 statutor
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each other. 11 The statutory notes
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(b) Personal property not exceeding
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category includes properly gifted t
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.) Next, assets owned by the spouse
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4. Unspoken fourth: The spouse and
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Table of Contents Crummey Power Pro
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however, that my Spouse’s power t
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Estate or the proceeds of such asse
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such Power Holder is entitled to wi
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1.2 Discretionary Payments From Ini
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didn’t occur) a long time ago? 1
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Upon my spouse's incapacity or deat
Page 491 and 492:
Trustees of the Separate Trusts *Op
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Unfilled Trustee Vacancy If the off
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the independent special trustee. An
Page 497 and 498:
Removal and Replacement of Trust Ad
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Definitions 6 Compensation Any Trus
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Trust Asset Diversification and Con
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As a Grantor Retained Annuity Trust
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ultimate burning out of the sun and
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Granting and Exercising Powers of A
Page 509 and 510:
POWER TO CHANGE LIMITED POWER INTO
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Single Fund QTIP Marital Trust Inco
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5.8 Reverse QTIP Election. The Trus
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SECTION 11 Federal and Minnesota In
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Federal and Minnesota Individual Ta
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qualifying charities. Distributions
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iii. In the Reesink case, taxpayer
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The 10% threshold applies to all ta
Page 525 and 526:
A Baker’s Dozen of Dangerous Assu
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In short, domicile is the combinati
Page 529 and 530:
choice of law process in the render
Page 531 and 532:
Germany is one such example of a co
Page 533 and 534:
The US State Department lists the v
Page 535 and 536:
In every other case, a foreign trus
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SECTION 13 Drafting Documents With
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Drafting With the Corporate Trustee
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date, then include a copy with the
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step daughter two months before her
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2. Borrowing in an irrevocable trus
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estrictive access to principal. Con
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SECTION 14 The Current Status of Wi
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I. History of the Wisconsin Trust C
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d. A final accounting is required b
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a. ULC promulgated the uniform prin
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3. Irrevocable trusts may be modifi
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7. A trustee may delegate its dutie
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fiduciary or confidential relations
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6. The new code will eliminate the
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. The standard of care that applies
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23. The subchapter dealing with lia
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Electronic reproduction of 2011−1
Page 593 and 594:
Page 595 and 596:
Page 597 and 598:
Page 599 and 600:
Page 601 and 602:
Page 603 and 604:
Page 605 and 606:
Page 607 and 608:
Page 609 and 610:
Fiduciaries and Fighting Families:
Page 611 and 612:
3. Who should attend 4. Agenda or f
Page 613 and 614:
TABLE OF CONTENTS I. INTRODUCTION .
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I. INTRODUCTION MEDICAL ASSISTANCE
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has decided to increase reimburseme
Page 619 and 620:
the problems they cause for some co
Page 621 and 622:
change only when Social Security pa
Page 623 and 624:
PRACTICE TIP: When the Asset Assess
Page 625 and 626:
2014. i. If the community spouse do
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g. making income or asset methodolo
Page 629 and 630:
less than the asset’s value on th
Page 631 and 632:
amount of the transfer was $25,000.
Page 633 and 634:
Example: the transfer penalty and t
Page 635 and 636:
allow a recipient's current income
Page 637 and 638:
facility admission or readmission t
Page 639 and 640:
The NF LOC Initiative has been hard
Page 641 and 642:
was not [sic] made exclusively for
Page 643 and 644:
1. Prior to February 8, 2006, the p
Page 645 and 646:
follows: [Undue hardship] exists wh
Page 647 and 648:
claim in both Estate of Barg and In
Page 649 and 650:
federal law. See 42 U.S.C. § 1396p
Page 651 and 652:
called "MA for Adults Without Child
Page 653 and 654:
The starting point for redesign of
Page 655 and 656:
programs, available in the State. S
Page 657 and 658:
If the enrollee is required to sati
Page 659 and 660:
Art. 2, Sec. 4, amends Minn. Stat.
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Art. 2, Sec. 30, amends Minn. Stat.
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MARITAL DEDUCTION PLANNING: First C
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(1974); PLR 7902020 (ruling gift to
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(A) Then do your other language—d
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to any jurisdiction.” Michael Mul
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2) Fractional share: As the value o
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d) The amount subject to the electi
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Form 706 is due nine months from th
Page 677 and 678:
C. Gift Tax 1. EGTRRA partially sev
Page 679 and 680:
three years, when Fred would have t
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equired beginning date, and they wi
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SECTION 18 Estate Planning Issues f
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Table of Contents 1. Initial consid
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termination notices should be filed
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If the Fiduciary is released from p
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c. Relief is requested by using For
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when ordinarily due. Use, for examp
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SECTION 20 Portability Under the Ne
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I. HOW TO MAKE THE ELECTION PORTABI
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espect to such an estate, for beque
Page 743 and 744:
decedent, which together is the amo
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of the surviving spouse’s death.
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GSTT election or a portability elec
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VI. THE TEMPORARY REGULATIONS PART
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(c) Credit limitation. The applicab
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(7) Requirements of return— (i) G
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property of the marital trust relat
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(ii) Application. H’s DSUE amount
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(i) If the executor of the decedent
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Table of contents This section list
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death. Thus, the decedent’s DSUE
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SECTION 21 New Lawyer Panel: “Wha
Page 767 and 768:
I. Introduction Building & Managing
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Being the beneficiary of a trust Fu
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clients what you are doing for them
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Be aware, however, that sometimes y
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Estate and Trust Administration 101
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Obtain Asset Information You should
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2. Other “Non-Probate” Assets S
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(ii) the pages of the trust agreeme
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The total value of the probate asse
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Surviving Your First Probate Procee
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4. Closing the estate - Statement t
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Table of Contents Estate Planning t
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. In order to qualify for the $14,0
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1. Minnesota does not have a gift t
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a. Within 9 months of a completed l
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in excess of the applicable estate
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Preparing Your First Estate and Gif
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E. Other Notable Items There are a
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SECTION 22 Small Estates Panel - Pr
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I. Introduction Disclaimers have lo
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epresentative.The writing should in
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IV. The Disclaimer-Based Estate Pla
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Grandchild B $11,000 Grandchild C $
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formula similar to the one used inW
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Small Estates Panel Peter M. Hendri
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assets must have been subject to an
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A. The Doctrine of Advancements, Ho
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promissory notes and/or mortgages,
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advancements. The Court opined that
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a) Filing a gift tax return for gif
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TABLE OF CONTENTS I. INTRODUCTION 1
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emains private both during the owne
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for many of the same reasons as a w
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I. REVOCATION BY SPOUSE NOT IN TITL
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TODD, the county Medical Assistance
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PRACTICE TIP: To avoid the complica
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Subd. 3.Rights of creditors and rig
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A transfer on death deed that other
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conveyance or transfer is condition
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COMMENT: See above Question and Ans
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SECTION 24 Sales of Real Estate: Fr
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B. Listing Agreement 1. Key terms a
Page 881 and 882:
c. Deed/Title d. Deferred Taxes/Ass
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A. “Property” Documents 1. Deed
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SECTION 25 A Gift for All Donors: A
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I. INTRODUCTION. Often philanthropi
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4. The trustee of a CRT may be an i
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4. If a trust is measured by the li
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III. RETIREMENT ACCOUNT GIFTS. A.
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C. Income Tax On Withdrawals from R
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. P might consider making such a gi
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vii. viii. Income taxes. Amounts di
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v. Income tax. The IRA with S as be
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3. The trustee of the CLT makes def
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V. PRIVATE FOUNDATIONS. A. Definiti
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4. Net Investment Income. An excise
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c. Ordinary Income Property. Only t
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SECTION 26 Incentive/Disincentive P
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PLANNING AND DRAFTING FOR THE USE O
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descendants, the client clearly wil
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E. Special Family Needs. In some fa
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age and the child or grandchild cou
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D. Division of Trust. Since incenti
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SCHEDULE 1 SAMPLE PROVISIONS 1. Def
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6. Distributions to Match the Benef
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cooperate with the trustees in esta
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16. Other Resources. In making disc
Page 931 and 932:
expenses; (B) to provide a Benefici
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Grantors further recognize, should
Page 935 and 936:
dental insurance premiums, or other
Page 937 and 938:
the Trustee on a regular basis for
Page 939 and 940:
(B) (C) (D) Trustee’s Authority t
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(3) The costs of initial whole body
Page 943 and 944:
SECTION 27 New Law Update - Changes
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A committee was formed within the V
Page 947 and 948:
than one attorney-in-fact is design
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I, (the above named Principal),here
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Acknowledgment of notice to attorne
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IMPORTANT NOTICE TO THE ATTORNEY(S)
Page 955 and 956:
Estate Planning and Administration
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iii. Former attorney and Ebay selle
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client to make such a list. In assi
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1. A reminder to update the digital
Page 963 and 964:
the Will and not the Trustee in the
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iii. Minn. Stat. § 609.891: Unauth
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c. If device is password protected,
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1. When planning ahead, review of s
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n. For a blog, consider whether the
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EXHIBIT A Digital Asset Inventory I
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8. Is there any sensitive informati
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Table of Contents I. Client with Di
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1.6(b)(3) to reveal information abo
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