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

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iv. Remove and appoint a trustee, trust advisor, investment committee member, or distribution committee member; v. Terminate the trust; vi. Veto or direct trust distributions; vii. Change situs or governing law of the trust, or both; viii. Appoint a successor trust protector; ix. Interpret terms of the trust instrument at the request of the trustee; x. Advise the trustee on matters concerning a beneficiary; and xi. Amend or modify the trust instrument to take advantage of laws governing restraints on alienation, distribution of trust property, or the administration of the trust. d. State Statutes The first trust protector statute in the United States was passed by South Dakota in 1997 (S.D. CODIFIED LAWS § 55-1B-6). Idaho passed their trust protector law in 1999 (IDAHO CODE ANN. § 15-7-501). Pursuant to South Dakota law, a trust protector is defined as “any disinterested third party whose appointment is provided for the trust instrument.” i. Some of the states that have a statutory acknowledgement of the role of trust protector include: 5. SPECIAL PURPOSE ENTITIES Alaska (ALASKA STAT. § 13.36.370) Arizona (ARIZ. REV. STAT. § 14-10818) Delaware (DEL. CODE ANN. tit. 12, § 3313) Idaho (IDAHO CODE ANN. § 15-7-501) Nevada (NEV. REV. STAT. §163.5553) New Hampshire (N.H. REV. STAT. ANN. § 564-B:12-1201 - 1208) South Dakota (S.D. CODIFIED LAWS § 55-1B-6) Tennessee (TENN. CODE ANN. § 35-16-108) Vermont (VT. STAT. ANN. tit. 14A, §§ 1101-1105) Wyoming (WYO. STAT. ANN. §§ 4-10-710 – 11) Special Purpose Entities are gaining in popularity; however, only a few states currently allow for these types of entities. South Dakota is the only state that recognizes these entities by statute. 98 Special Purpose Entities are typically an LLC or some other corporate entity that houses the trust protector, as well as the investment and distribution committees or advisors. It is not a trust company. The sole purpose of the Special Purpose Entity is to direct the administrative trustee as to the trust investments, distributions and/or trust protector functions. a. Liability Coverage The Special Purpose Entity alternative must generally be used in combination with the directed trust structure previously discussed. The Special Purpose Entity places a liability umbrella over the heads of the individuals filling the roles of the trust protector, 98 S.D. CODIFIED LAWS § 51A-6A-66. © South Dakota Trust Company LLC – All Rights Reserved Page | 15
investment committee and/or distribution committee. These individuals are employed by the Special Purpose Entity to carry out the functions of the Special Purpose Entity. i. It is very difficult, if not improbable, to acquire liability insurance coverage for individuals serving as co-trustees, members of the investment or distribution committee or trust protector. Most of these roles are subject to a gross negligence standard; however, some insurance companies will provide coverage on a caseby-case basis to a Special Purpose Entity established specifically for these purposes, thus further protecting the trust protector and committee members. Such an entity would also provide legal continuity of its corporate existence by continuing without regard to any single individual’s death, disability, or resignation. The entity typically has by-laws that allow for additional members to be added or removed so that the entity can continue along with the trust. 99 These entities have to be properly structured so as to avoid estate tax inclusion issues. 100 b. Many states do not have specific state statutes, such as Alaska, Nevada and Wyoming. However, these states may allow families to establish Special Purpose Entities on a caseby-case basis. 101 These entities must generally be exempt from regulated Private Trust Company status and are typically special purpose type entities with limited defined duties. 102 6. THE TRUST INSTRUMENT a. New trusts are very easily drafted as directed trusts. Additionally, older trusts may be converted to directed trusts as a result of state modification and reformation statutes. 103 This generally takes place if circumstances, which were not anticipated by the trust’s grantor, have arisen and the modification would substantially further the trust or its purpose, such as the desire for directed trust status regarding the administration. i. In addition to reformation and modification statutes, several states have privacy 104 and virtual representation statutes 105 to protect a family’s privacy and provide sign-off by the future vested and/or contingent beneficiaries as part of the modification or reformation. b. Another strategy involves older non-directed Irrevocable Life Insurance Trusts (ILITs). An insurance policy can generally be sold from the old ILIT to a newly drafted ILIT with directed trust provisions. If properly structured, there should be no “transfer for value” 99 Information based upon the authors’ previous experience and informal discussions with advisors. 100 Same analogy as Private Family Trust Company Private Letter Rulings, see I.R.S. Priv. Ltr. Rul. 20053003, 200546055, and 200548035, see also I.R.C. §§ 2036, 2038, 2041 and 2514. 101 Information based upon the authors’ previous experience and informal discussions with advisors. 102 Id. 103 Alaska (ALASKA STAT. §§ 13.36.340 - 13.36.360); Delaware (DEL. CODE ANN. tit. 12, § 3313(f)); South Dakota (S.D. CODIFIED LAWS § 55-3-24); Tennessee (TENN CODE ANN. §§ 35-15-410 – 35-15-416); Wyoming (WYO. STAT. ANN. §§ 4-10-411 – 4-10-416). 104 Delaware Court of Chancery Rule 5(g); South Dakota (S.D. CODIFIED LAWS § 21-22-28). 105 Alaska (ALASKA STAT. § 13.06.120); Delaware (DEL. CODE ANN. tit. 12, § 3547); D.C. (D.C. CODE § 19- 1303.01 -.03); Illinois (760 ILL. COMP. STAT. 5/16.1); Nevada (NEV. REV. STAT. § 155.140); New York (N.Y. SURR. CT. PROC. ACT § 315); South Dakota (S.D. CODIFIED LAWS §§ 55-3-31 – 55-3-38); Wyoming (Wyo. Stat. Ann. §§ 4-10-301 – 4-10-305). © South Dakota Trust Company LLC – All Rights Reserved Page | 16
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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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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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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 247 and 248: “ (a) Property a testator, while
Page 249 and 250: home. When devising recreational re
Page 251 and 252: to allow the beneficiary to pay off
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
Page 259 and 260: that exemptions or deductions allow
Page 261 and 262: F. Family Business Succession. The
Page 263 and 264: 3. Problems with Allocation of Fami
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Page 269 and 270: *In 1995, Delaware enacted legislat
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Page 285 and 286: Please see example below of a typic
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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
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Page 301 and 302: property interests. 206 This can be
Page 303 and 304: 11. EXTINGUISHMENT OF CREDITORS’
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
Page 317 and 318: ii. SSA Determination Anyone receiv
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Page 321 and 322: else uses the computer from time to
Page 323 and 324: h. Revocable vs. Irrevocable i. Spe
Page 325 and 326: Qualified Disability Trust (QDT) ex
Page 327 and 328: (1) An inventory of Trust assets an
Page 329 and 330: 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
Page 621 and 622:
change only when Social Security pa
Page 623 and 624:
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
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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
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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
Page 889 and 890:
4. The trustee of a CRT may be an i
Page 891 and 892:
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
Page 901 and 902:
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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