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I. RULE AGAINST PERPETUITY/TRUST DURATION 1. INTRODUCTION Since 1948 thirty states and the District of Columbia have abolished or modified their rule against perpetuities (RAP) in whole or in part so that the trust can last forever or for a very long duration. Most of these RAP abolishment and modifications took place after 1986, generally 1995 and beyond. 1 These states are listed and categorized below: Unlimited Duration States: Alaska Arizona Colorado Delaware* District of Columbia Hawaii Idaho (pre-1986) Illinois Kentucky Maine Maryland Michigan Missouri Nebraska New Hampshire New Jersey North Carolina Ohio Pennsylvania Rhode Island South Dakota (pre-1986) Virginia Wisconsin (pre-1986) Long-Term Duration States: Alabama (360 years) Colorado (1,000 years) Florida (360 years) Nevada (365 years) Tennessee (360 years) Utah (1,000 years) Washington (150 years) Wyoming (1,000 years) 1 Unlimited Duration States: Alaska (ALASKA STAT. §§ 34.27.100, 34.27.051); Arizona (ARIZ. REV. STAT. §§ 14- 2901A, 33-261); Delaware (DEL. CODE ANN. tit. 25, § 503); District of Columbia (D.C. CODE §§ 19-904(a)(10), 19- 901); Hawaii (HAW. REV. STAT. §§ 525-1, 554G); Idaho (IDAHO CODE ANN. § 55-111); Illinois (765 ILL. COMP STAT. §§ 305/1-305/6); Kentucky (KY. REV. STAT. ANN. §§ 381.224; 381.225); Maine (ME. REV. STAT. ANN. tit. 33, § 101-A); Maryland (MD. CODE ANN., EST. & TRUSTS §§ 11-102 – 11.103); Michigan (MICH. COMP. LAWS §§ 554.71 – 554.78, 554.91 – 554.94); Missouri (MO. REV. STAT. § 456.025); Nebraska (NEB. REV. STAT. §§ 76-2001 – 76-2008); New Hampshire (N.H. REV. STAT. ANN. §§ 564:24, 547:3-k); New Jersey (N.J. STAT. ANN. §§ 46:2F-9 – 46:2F-11); North Carolina (N.C. GEN. STAT. §§ 41-15 – 41-27); Ohio (OHIO REV. CODE ANN. §§ 2131.08, 2131.09); Pennsylvania (20 PA. CONS. STAT. §§ 6104, 6107.1); Rhode Island (R.I. GEN. LAWS § 34-11-38); South Dakota (S.D. CODIFIED LAWS §§ 43-5-1 – 43-5-9, 55-1-20); Virginia (VA. CODE ANN. §§ 55-12.1 – 55-12.6, 55- 13.3); Wisconsin (WIS. STAT. § 700.16). Long Duration States: Alabama (360 years, ALA. CODE §§ 35-4A-1 – 35-4A-8); Colorado (1,000 years, COLO. REV. STAT. § 15-11-1102.5); Florida (360 years, FLA. STAT. § 689.225); Nevada (365 years, NEV. REV. STAT. §§ 111.103 – 111.1039); Tennessee (360 years, TENN. CODE ANN. §§ 66-1-202 – 66-1-208); Utah (1,000 years, UTAH CODE ANN. §§ 75-2-1201 – 75-2-1209); Washington (150 years, WASH. REV. CODE § 11.98.130); Wyoming (1,000 years, WYO. STAT. ANN. §§ 34-1-139). © South Dakota Trust Company LLC – All Rights Reserved Page | 3
*In 1995, Delaware enacted legislation that permits stocks, bonds, and other personal property to remain in trust forever. 2 Real property is limited to only 110 years in trust. 3 This 110 real property limitation can be avoided by putting the property in a limited liability company or a family limited partnership because, under Delaware law, interests in these entities are personal property. 4 Please See: Daniel G. Worthington, Perpetual Trust States – The Latest Rankings, TRUSTS & ESTATES, Jan. 2007; 2. APPROACH TO REPEALING OR MODIFYING THE RAP There has been no one dominant approach to repealing or modifying the RAP. Several approaches have been utilized to create perpetual and long-term trusts. 5 a. RAP Approach #1: Suspension of the Power to Alienate Several states shift the perpetuities inquiry from remoteness of vesting to suspension of the power to alienate. Consequently, if the trustee has an explicit or implied power to sell, the trust jumps outside the rule of suspension of alienation, which limits the duration of a trust. These states have also generally abrogated their rule against perpetuities, which addresses the timing issue. Consequently, these states address both the “timing” and “vesting” issues associated with doing away with their RAP. These states are further categorized as: i. Pre-1986 States: Idaho, 6 South Dakota, 7 Wisconsin 8 Please note: These states are sometimes referred to as the “bellwether” states because they made changes to their applicable law before the generation-skipping transfer (GST) tax was imposed in 1986, and therefore their statutory purpose could not have been to circumvent the Internal Revenue Code (IRC). Congress passed the GST tax in 1986, imposing a tax on property transfers to skip persons. 9 2 DEL. CODE ANN. tit. 25, § 503. 3 Id. 4 Id. 5 The various methods of repealing or modifying the Rule Against Perpetuities are outlined in the following articles: Garrett Moritz, Note, Dynasty Trusts and the Rule against Perpetuities, 116 HARV. L. REV. 2588 (2003); Jesse Dukeminier & James E. Krier, The Rise of the Perpetual Trust, 50 UCLA L. REV. 1303 (2003); Stewart E. Sterk, Jurisdictional Competition to Abolish the Rule Against Perpetuities: R.I.P. for the R.A.P., 24 CARDOZO L. REV. 2097 (2003); Daniel G. Worthington, The Problems and Promise of Perpetual Trust Laws, TRUSTS & ESTATES, Dec. 2004; Charles D. Fox IV & Michael J. Huft, Asset Protection and Dynasty Trusts, 37 REAL PROP. PROB. & TR. J. 287 (2002); Richard W. Nenno, Relieving Your Situs Headache: Choosing and Rechoosing the Jurisdiction for a Trust, 2006 Miami Tax Institute; Daniel G. Worthington, Is Florida’s New Rule Against Perpetuities a Generation- Skipping Transfer Tax Trap for the Unwary?, TRUSTS & ESTATES, Dec. 2000. 6 IDAHO CODE ANN. § 55-111. 7 S.D. CODIFIED LAWS §§ 43-5-1 – 43-5-9, 55-1-20. 8 WIS. STAT. § 700.16. 9 See supra note 5. © South Dakota Trust Company LLC – All Rights Reserved Page | 4
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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
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In the end, Wandry is correctly dec
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RECENT VALUATION CASE OF INTEREST (
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uncertainties, ahypothetical buyer
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So portability is achieved by givin
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(5) Special rules. (A) Election req
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million, and H2’s executor makes
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standard, but saves the rest for th
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THE IMAPCT OF WINDSOR ON ESTATE PLA
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Decanting: Refining an Old Vintage
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DECANTING: REFINING AN OLD VINTAGE
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XI. Trustee Liability .............
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D. Change Governing Law E. Trustee
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absolute discretion for some modifi
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K. Court Approval. Court approval i
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eliminate beneficiaries or change t
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precisely, to make certain exceptio
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appointment created under the new t
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If contributions to the original tr
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Qualified personal residence trusts
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enefit the beneficiaries by convert
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B. Notice Required. Other states re
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of the particular state, apparently
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tax consequences. See Tax Effects a
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(ii) at the time the exempt trust b
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BIBLIOGRAPHY Articles 1. Farhad Agh
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APPENDIX I STATE DECANTING STATUTES
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ALTERNATIVE PLENARY Tax Issues (For
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I. MINNESOTA ESTATE TAX - LIFETIME
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NOTE: In the examples below, I will
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At his death, he leaves the followi
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total federal gross estate (line 1)
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Note: in several of the examples ab
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C. Source of Charitable Gift - Ordi
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Many tax preparers relied on that r
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RESULT: •Because the amount paid
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III. DEDUCTION OF MORTGAGE INTEREST
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•Estates with net taxable assets
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05/20/13 HOUSE RESEARCH ANALYST JM
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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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Page 239 and 240: 2. Discouraging Bad Behavior ......
Page 241 and 242: problems in a document but so can a
Page 243 and 244: B. Who suffers from a drafting prob
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Page 249 and 250: home. When devising recreational re
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Page 253 and 254: The remaining principal and any acc
Page 255 and 256: outright and free of trust. If eith
Page 257 and 258: D. Incentive Trusts 1. Encouraging
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Page 261 and 262: F. Family Business Succession. The
Page 263 and 264: 3. Problems with Allocation of Fami
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Page 271 and 272: 2. Exercise the power of appointmen
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Page 283 and 284: 1. Significant change in asset allo
Page 285 and 286: Please see example below of a typic
Page 287 and 288: IV. DECANTING 1. INTRODUCTION Decan
Page 289 and 290: . States May Limit Trustee’s Auth
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Page 293 and 294: ecome entitled to an interest, if i
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Page 297 and 298: iii. Statutes c. South Dakota Proce
Page 299 and 300: VII. DOMESTIC ASSET PROTECTION AND
Page 301 and 302: property interests. 206 This can be
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Page 305 and 306: 13. SPENDTHRIFT TRUSTS As previousl
Page 307 and 308: SECTION 4 Drafting and Administerin
Page 309 and 310: 1. Supplemental&SpecialNeedsTrust B
Page 311 and 312: iii. Discretionary Trust Trusts cre
Page 313 and 314: v. Vehicle One vehicle used to tran
Page 315 and 316: ii. Legal Guardian It is generally
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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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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
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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
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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
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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
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A Baker’s Dozen of Dangerous Assu
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In short, domicile is the combinati
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choice of law process in the render
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Germany is one such example of a co
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The US State Department lists the v
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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
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Fiduciaries and Fighting Families:
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3. Who should attend 4. Agenda or f
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TABLE OF CONTENTS I. INTRODUCTION .
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I. INTRODUCTION MEDICAL ASSISTANCE
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has decided to increase reimburseme
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the problems they cause for some co
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change only when Social Security pa
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PRACTICE TIP: When the Asset Assess
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2014. i. If the community spouse do
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g. making income or asset methodolo
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less than the asset’s value on th
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amount of the transfer was $25,000.
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Example: the transfer penalty and t
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allow a recipient's current income
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facility admission or readmission t
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The NF LOC Initiative has been hard
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was not [sic] made exclusively for
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1. Prior to February 8, 2006, the p
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follows: [Undue hardship] exists wh
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claim in both Estate of Barg and In
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federal law. See 42 U.S.C. § 1396p
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called "MA for Adults Without Child
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The starting point for redesign of
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programs, available in the State. S
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If the enrollee is required to sati
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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
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C. Gift Tax 1. EGTRRA partially sev
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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
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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
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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
Page 875 and 876:
COMMENT: See above Question and Ans
Page 877 and 878:
SECTION 24 Sales of Real Estate: Fr
Page 879 and 880:
B. Listing Agreement 1. Key terms a
Page 881 and 882:
c. Deed/Title d. Deferred Taxes/Ass
Page 883 and 884:
A. “Property” Documents 1. Deed
Page 885 and 886:
SECTION 25 A Gift for All Donors: A
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I. INTRODUCTION. Often philanthropi
Page 889 and 890:
4. The trustee of a CRT may be an i
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4. If a trust is measured by the li
Page 893 and 894:
III. RETIREMENT ACCOUNT GIFTS. A.
Page 895 and 896:
C. Income Tax On Withdrawals from R
Page 897 and 898:
. P might consider making such a gi
Page 899 and 900:
vii. viii. Income taxes. Amounts di
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v. Income tax. The IRA with S as be
Page 903 and 904:
3. The trustee of the CLT makes def
Page 905 and 906:
V. PRIVATE FOUNDATIONS. A. Definiti
Page 907 and 908:
4. Net Investment Income. An excise
Page 909 and 910:
c. Ordinary Income Property. Only t
Page 911 and 912:
SECTION 26 Incentive/Disincentive P
Page 913 and 914:
PLANNING AND DRAFTING FOR THE USE O
Page 915 and 916:
descendants, the client clearly wil
Page 917 and 918:
E. Special Family Needs. In some fa
Page 919 and 920:
age and the child or grandchild cou
Page 921 and 922:
D. Division of Trust. Since incenti
Page 923 and 924:
SCHEDULE 1 SAMPLE PROVISIONS 1. Def
Page 925 and 926:
6. Distributions to Match the Benef
Page 927 and 928:
cooperate with the trustees in esta
Page 929 and 930:
16. Other Resources. In making disc
Page 931 and 932:
expenses; (B) to provide a Benefici
Page 933 and 934:
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
Page 941 and 942:
(3) The costs of initial whole body
Page 943 and 944:
SECTION 27 New Law Update - Changes
Page 945 and 946:
A committee was formed within the V
Page 947 and 948:
than one attorney-in-fact is design
Page 949 and 950:
I, (the above named Principal),here
Page 951 and 952:
Acknowledgment of notice to attorne
Page 953 and 954:
IMPORTANT NOTICE TO THE ATTORNEY(S)
Page 955 and 956:
Estate Planning and Administration
Page 957 and 958:
iii. Former attorney and Ebay selle
Page 959 and 960:
client to make such a list. In assi
Page 961 and 962:
1. A reminder to update the digital
Page 963 and 964:
the Will and not the Trustee in the
Page 965 and 966:
iii. Minn. Stat. § 609.891: Unauth
Page 967 and 968:
c. If device is password protected,
Page 969 and 970:
1. When planning ahead, review of s
Page 971 and 972:
n. For a blog, consider whether the
Page 973 and 974:
EXHIBIT A Digital Asset Inventory I
Page 975 and 976:
8. Is there any sensitive informati
Page 977 and 978:
Table of Contents I. Client with Di
Page 979 and 980:
1.6(b)(3) to reveal information abo
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Probate & Trust Law Section Conference Manual ... - Minnesota CLE

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