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Ohio, OHIO REV. CODE ANN. § 5803.01 to .05 Oregon, OR. REV. STAT. § 130.100 to .120 Pennsylvania, 20 PA. CONS. STAT. § 7721 to 7726 Rhode Island, R.I. GEN. LAWS § 18-4-30 South Carolina, S.C. CODE ANN. § 62-7-301 to 305 South Dakota, S.D. CODIFIED LAWS § 55-3-31 to 38 Tennessee, TENN. CODE ANN. § 35-15-301 to 305 Texas, TEX. PROP. CODE ANN. § 115-013 Utah, UTAH CODE ANN. § 75-7-301 to 305 Vermont, VT. STAT. ANN. tit. 14A, § 301 to 305 Virginia, VA. CODE ANN. § 64.2-714 to 718 Washington, WASH. REV. CODE ANN. § 11.96A.120 Wisconsin, WIS. STAT. ANN. §§ 701.15; 879.23(5) Wyoming, WYO. STAT. ANN. § 4-10-301 to 304 3. CONCLUSION The virtual representation statutes are very helpful for representing unborn descendants of long term or unlimited duration dynasty trusts, particularly for purposes of trust modification/ reformation or decant. © South Dakota Trust Company LLC – All Rights Reserved Page | 29
VI. PRIVACY OF COURT RECORDS 1. INTRODUCTION Privacy may be a high priority for clients and an important concern in regard to asset protection planning. South Dakota has a comprehensive privacy statute. As a general rule both federal and state court records are available to the public. 186 2. STATES Many states have exceptions that allow for the sealing of records. a. New York New York follows the general rule that court records are available to the public. 187 New York recognizes this right under its state constitution, statutes and cases. 188 N.Y. COMP. CODES R. & REGS. tit. 22, section 216.1 provides that a court shall not enter an order in a civil action, sealing any court records in whole or in part “except upon written finding of good cause, which shall specify the grounds.” 189 Not the parties’ decision: The New York rule is designed to end the parties’ control over the sealing decision. The court must weigh the interests of the public’s “right to know” against the parties’ privacy interests. 190 This is done on a case-by-case basis. The court must set forth their reason for sealing the documents in writing and limit the sealing only to those particular documents or groups of documents, and to refrain from sealing entire files unless absolutely necessary. 191 Consequently, confidentiality is the exception and not the rule. i. Two Step Process for Motion to Seal: 192 1. Motion must show “good cause” to seal; 2. After “good cause” is shown court must weigh this against the public interest to access the court documents; Please Note: Desire to avoid embarrassment is not sufficient to overcome the presumption of openness. a. Factors for Court to Consider: i. Extent: Information relied on by court in making their decision; 186 First Amendment to the U.S. Constitution, the public’s qualified right of access to court records and proceedings. See Press-Enter Co. v. Super. CT. of Cal for the County of Riverside, 478 U.S. 1 (1986); Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); Westmoreland v. Columbia Broad Sys. Inc., 752 F. 2d 16 (2d Cir. 1984); Craig v. Harvey, 331 U.S. 367 (1945); United States v. Amodeo, 44 F. 3d 145 (2nd Cir. 1995). 187 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1. 188 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1; New York Constitution Article 1 Section 8, supra. 189 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1. 190 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1. 191 N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1. N.Y. COMP. CODES R. & REGS. tit. 22, § 216.1. © South Dakota Trust Company LLC – All Rights Reserved Page | 30
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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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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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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
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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
Page 265 and 266: SECTION 3 Unlimited Duration Trusts
Page 267 and 268: 3. CONCLUSION .....................
Page 269 and 270: *In 1995, Delaware enacted legislat
Page 271 and 272: 2. Exercise the power of appointmen
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Page 275 and 276: 4. CONCLUSION vii. New Jersey viii.
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Page 279 and 280: Additionally, many advisors are dra
Page 281 and 282: investment committee and/or distrib
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
Page 291 and 292: V. VIRTUAL REPRESENTATION 1. INTROD
Page 293: ecome entitled to an interest, if i
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
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
Page 319 and 320: eimburse the State following the be
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
Page 331 and 332: SECTION 5 Notable North Dakota Nuan
Page 333 and 334: I. North Dakota Real Property A. No
Page 335 and 336: a Statement of Claim is recorded by
Page 337 and 338: 1. Any grantee or grantee’s autho
Page 339 and 340: By North Dakota Information Technol
Page 341 and 342: insolvent estates. Has priority ove
Page 343 and 344: (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
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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
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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
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expenses; (B) to provide a Benefici
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Grantors further recognize, should
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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
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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)
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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
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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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