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IV. Preparing North Dakota deeds requires a license to practice law in North Dakota A. North Dakota Rule 5.5 Unauthorized Practice of <strong>Law</strong> provides: . . . . * * * * * * * * * * * * * * (d) A lawyer who is not admitted to practice in this jurisdiction shall not represent or hold out to the public that the lawyer is admitted to practice law in this jurisdiction. A lawyer who practices law in this jurisdiction under paragraph (b) or (c) shall disclose in writing to the client that the lawyer is not licensed in this jurisdiction. * * * * * * * * * * * * * * B. According to my recent emails with retired North Dakota Supreme Court Justice William A. Neumann, who is now the Executive Director of the State Bar Association of North Dakota, non-North Dakota licensed attorneys may not prepare deeds regarding North Dakota real property or mineral interests because doing so violates Rule 5.5 and is the unauthorized practice of law. C. According to my recent emails with Attorney Brent J. Edison, Assistant Disciplinary Counsel for the Disciplinary Board of the North Dakota Supreme Court, when he is asked about whether something constitutes the unauthorized practice of law and Rule 5.5, his usual response is to refer lawyers to the safe harbor exceptions set forth in 5.5(a) and 5.5(b). If the contemplated conduct does not fit within one of these safe harbors, there may be an issue of the unauthorized practice of law. 22
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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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B. Who suffers from a drafting prob
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succeed to the preceding trustee’
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“ (a) Property a testator, while
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home. When devising recreational re
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to allow the beneficiary to pay off
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The remaining principal and any acc
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outright and free of trust. If eith
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D. Incentive Trusts 1. Encouraging
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that exemptions or deductions allow
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F. Family Business Succession. The
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3. Problems with Allocation of Fami
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SECTION 3 Unlimited Duration Trusts
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3. CONCLUSION .....................
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*In 1995, Delaware enacted legislat
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2. Exercise the power of appointmen
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ii. States: 1. Alaska 43 - 1,000 ye
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4. CONCLUSION vii. New Jersey viii.
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the “prudent man rule” required
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Additionally, many advisors are dra
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investment committee and/or distrib
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1. Significant change in asset allo
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Please see example below of a typic
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IV. DECANTING 1. INTRODUCTION Decan
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. States May Limit Trustee’s Auth
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V. VIRTUAL REPRESENTATION 1. INTROD
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ecome entitled to an interest, if i
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VI. PRIVACY OF COURT RECORDS 1. INT
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iii. Statutes c. South Dakota Proce
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VII. DOMESTIC ASSET PROTECTION AND
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property interests. 206 This can be
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
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
Page 345 and 346: o North Dakota has two (2) pooled t
Page 347 and 348: G. The value of currently owned min
Page 349 and 350: * * * * * * * * * * * * * * lease r
Page 351 and 352: eceived, are not considered to be t
Page 353: disqualifying transfer provisions i
Page 362 and 363: SECTION 6 I Want What’s Mine - No
Page 364 and 365: The Beauty and Burden of Trusts It
Page 366 and 367: Failing to do so may lead to resent
Page 368 and 369: with the terms and purposes of the
Page 370 and 371: Communication--an Often Under-Utili
Page 372 and 373: Through good planning and good prac
Page 374 and 375: Currently, Minnesota does not have
Page 376 and 377: used to assist the drafting attorne
Page 378 and 379: TABLE OF CONTENTS Introduction: The
Page 380 and 381: C. Fairness and reasonableness of a
Page 382 and 383: TIP FOUR: IN A CASE OF A DELINQUENT
Page 384 and 385: E. See generally Estate of Torgerse
Page 386 and 387: “contribute[d] solely to the bene
Page 388 and 389: compensation or exempt property as
Page 390 and 391: 525.491 ATTORNEY'S LIEN. When any a
Page 392 and 393: 524.3-805CLASSIFICATION OF CLAIMS.
Page 394 and 395: FIDUCIARY’S DUTIES 1. Duty to com
Page 396 and 397: 10) The attorney indicated was affi
Page 398 and 399: hereinafter called the “subject p
Page 400 and 401: STATE OF MINNESOTA COUNTY OF MCLEOD
Page 402 and 403: Dated: May 1, 2013 ________________
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STATE OF MINNESOTA, RESPONDENT, V.
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N.W.2d 258 (Minn. 1993), to support
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appellant had asked for a continuan
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SECTION 8 Estate Planning for Execu
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The Well-Prepared Executive: Person
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Stock Options: Sales, Gifts, & Tran
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in the transferred NQSOs. As a resu
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taxed to the employee in the prior
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employee’s descendant, this would
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Recall that Section 83 triggers the
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E. Transfers in Divorce The IRS fir
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even 30% of that value because of t
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1. A decedent’s dispositive docum
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Summary of Option Strategies Strate
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Summary of Option Strategies 7. for
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Economic flows of GRAT Example Numb
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Stock Swap for Cash Freezes Appreci
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Charitable Bequest of Stock Options
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IRA Rollback Strategy: Additional A
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What is a 10b5-1 Trading plan? Plan
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Things to keep in mind regarding 10
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TABLE OF CONTENTS INTRODUCTION…
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2. HISTORICAL PERSPECTIVE a. Pre -
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The 1969 law also highlighted the p
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Six, but less than seven yrs Seven
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When - Minn. Stat. § 524.2-211(a).
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House worth $400,000 and $220,000 m
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- Should the surviving spouse’s e
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SECTION 10 Large Estates Panel - De
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2013 Probate and Trust Law Conferen
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Code Section 2503(b) and further re
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(b) (c) (d) the designated agent, t
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easonable period of time, in order
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Trustee Appointment, Succession and
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do not significantly exceed (if at
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provides otherwise in the instrumen
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following who is then able to act a
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Option [In the event that the sole
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eneficiary, such trustee shall not
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Reflect tax or other legal changes
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Optional Provision requiring additi
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How specific should you be?—Good
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Trust. The value of the Trust and t
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terms of this Trust expressly and u
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LIMITATIONS ON EXERCISING POWER IN
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EXERCISING LIMITED TESTAMENTARY POW
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5.3 Distribution Of Principal. The
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the date of my death. In the event
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Federal and Minnesota Individual Ta
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e. Alternative Minimum Tax. i. ATRA
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one percentage point for each $2,00
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ii. The Tax Court disallowed an app
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SECTION 12 Transnational Planning -
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13 DANGEROUS ASSUMPTIONS 1. I need
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3. Every country will apply the law
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Germany, for example, in Section 23
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equirements under Minnesota Statute
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Minnesota courts, at least at an ap
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on documents signed by persons in t
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Table of Contents Introduction ....
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. No Power to Reject Assets. 1. Cor
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Example of Trust f/b/o ”H.” I m
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acknowledged, the conflict waived a
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enough. A professional fiduciary is
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set expectations of the beneficiari
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Current Status of the Wisconsin Tru
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a. A trustee may limit the claims o
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a. Pourover wills for each spouse.
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d. Duty of the trustee to notify th
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UTC gives the states the discretion
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e. A trustee shall notify the quali
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y other states. The ULC provided us
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d. With respect to directed trust p
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viii. Any other power granted to th
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Electronic reproduction of 2011−1
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SECTION 15 Fiduciaries and Fighting
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III. Crafting Lasting Settlement Ag
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SECTION 16 Medical Assistance 2013
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B. START DATE OF PENALTY PERIOD REM
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control eligibility for entitlement
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57,302 received benefits available
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usually becomes known in late June
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of institutionalization for the spo
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from July 1, 2012, through June 30,
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4. As a result of these maintenance
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This was commonly known as the "tra
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Ronald applied for MA. He transferr
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full return of the transferred asse
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applicant is eligible for benefits
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e called the “Essential Community
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NF (28) (166) EW (1,630) (3,396) CA
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(8) Implement nursing home level of
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Assistance Long-term Care. 31 This
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C. UNDUE HARDSHIP WAIVERS 1. As tra
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Attorney Sally K. Mortenson of Burn
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that portion of long-term care serv
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Appeals, but within three weeks of
Page 652 and 653:
the monthly contribution, monitorin
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Each state must have a transparent,
Page 656 and 657:
Since its inception, MinnesotaCare
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to provide that an individual who i
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Art.2, Sec. 21, amends Minn. Stat.
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SECTION 17 Marital Deduction Planni
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THE BASICS OF MARITAL DEDUCTION PLA
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) If a timely return is not filed,
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2) The surviving spouse must not be
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value on date of distribution excee
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. Any unused portion of this beques
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spouses are able to use GST exempti
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for tax years 2002 through 2010. No
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As the statute indicates, the Minne
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. The primary concern with meeting
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Many clients name their spouse and
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SECTION 19 Representing the Fiducia
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REPRESENTING THE FIDUCIARY WITH IRS
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ii. The personal representative, if
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personal liability. If no such noti
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the liability is not granted? vii.
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“break” for when an IRC §§616
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TABLE OF CONTENTS Page I. HOW TO MA
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set forth in the instructions issue
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G. Computing the DSUE Amount. The D
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educing the gift tax liability to z
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made and $2,000,000 was placed into
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or more. If you fund a credit shelt
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(2) Portability election upon filin
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under section 6018(a). Accordingly,
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Example 1. (i) Facts. The assets in
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3T(c)(2) regarding the timing of th
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spouse, not being married to the su
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(g) Expiration date. The applicabil
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divorce or an annulment, the subseq
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(e) Authority to examine returns of
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Table of Contents Building & Managi
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It is important for you to know the
Page 770 and 771:
client would assume would be includ
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IV. Send birthday cards Mail an ann
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Table of Contents Estate and Trust
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family members. Particularly if you
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1. Website. The fiduciary should co
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Transfer on Death Deed. A “Transf
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Transfer on Death/Payable on Death
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Table of Contents Surviving Your Fi
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3. If more than 3 years have passed
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E. Personal Representative personal
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Estate Planning to Reduce, Defer or
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2. 2013 Exemption Amount: $5,250,00
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2. If one spouse has greater financ
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2. Correct mistakes in the benefici
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Table of Contents Preparing Your Fi
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dividends. It is important to make
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($13,000 per year per donee). If yo
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THE WANDRY WAY: A BETTER APPROACH T
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estate is presumed upon the recordi
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donee. There cannot be a renunciati
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formula disclaimer might renounce
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approximately a 1.98% Norseman memb
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V. Conclusion Disclaimers will cont
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amendment to Minn. Stat. § 519.05(
Page 848 and 849:
On April 25, 2013, Governor Dayton
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More specifically, Minnesota Statut
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John filed notice of review of the
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2. Possible Ramifications. It is of
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SECTION 23 Transfer on Death Deeds;
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I. INTRODUCTION TRANSFER ON DEATH D
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Authority: Minn. Stat. § 287.22(15
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G. MARRIAGE AND DIVORCE What happen
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TODD would be void or the surviving
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In the absence of TODD language tha
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(c) "Grantor Owner" means an owner
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A transfer on death deed may design
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death and the transfer on death dee
Page 874 and 875:
invalidate any deed that is not a t
Page 876 and 877:
affecting the estate of the grantor
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SALES OF REAL ESTATE - FROM LISTING
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D. Best Practices townhomes, detach
Page 882 and 883:
. Application for financing c. Limi
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agreement is cancelled if defaultin
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A GIFT FOR ALL DONORS: ADVISING PHI
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2. What is the donor’s relationsh
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income exceeds the unitrust amount.
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2. Gift Tax. a. The donor will rece
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must be made within five years afte
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iii. iv. The gift can satisfy the d
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. If P wished to leave only part of
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v. Income tax. The QTIP distributio
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ii. iii. iv. RMDs. Spouse takes ove
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3. The estate planning benefit of a
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1. Purpose. A core concept of a pri
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3. The fund is “donor advised”
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Comparisons of Methods - See Append
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Table of Contents I. Introduction .
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may be more important for estate pl
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those who are members of a partners
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V. Planning Techniques. Trusts are
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property interest nor an enforceabl
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VIII. Conclusion Estate planners sh
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3. Distribution Upon Receiving a Ba
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(C) (D) (E) (F) (G) whether the ben
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estate and the beneficiaries of the
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divided by the number of great-gran
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meet those Needs. Such Trustee may,
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investments of the Trust shall cons
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that distributions from this trust
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(B) _________ Foundation. In additi
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(E) Release and Indemnification. Se
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(E) (F) If the trust set forth here
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Law Update: Changes to Minnesota’
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Acknowledgment in order to benefit
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STATUTORY SHORT FORM POWER OF ATTOR
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THIRD: My attorney(s)-in-fact MAY N
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IMPORTANT NOTICE TO THE PRINCIPAL R
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PLENARY DAY 2 Digital Life, Virtual
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I. Advances in Technology and the I
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Southwest blog. The death of an emp
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iii. Note that it is unlikely that
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password, to my Executor, and the w
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the Uniform Trust Code, the Uniform
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communications and records, (iii) w
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5. Fiduciary should change the pass
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iii. Identify what domain names are
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iv. The statute allows for electron
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4. Blogs, Webpages and Domain Names
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BONUS ELIMINATION OF BIAS I Am Not
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WORKING WITH A CLIENT OR FAMILY MEM
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such, moral and ethical considerati
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