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

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IRA Rollback Strategy: Additional Advantage Creditor Protection and qualified plan assets • ERISA Qualified Plans – Exempt from claims of general creditors under both state law and federal bankruptcy proceedings • Non-ERISA Qualified Plan – The Bankruptcy Abuse Prevention and Consumer Protection Act exempts IRAs up to $1MM • This limitation does not apply to rollover IRAs • States may opt out of the Federal exemption CONFIDENTIAL Note: This presentation is for educational purposes only. This is not for distribution outside of this seminar. 11
Use Interest Rate Swaps to Lock in Lump Sum Benefit Mechanics of a rate lock Lump sum election date • SERP Participant agrees to have lump sum calculated using fixed interest rate on determination date • In order to create more certainty to the lump sum amount today, individual will separately enter into a rate lock hedge position with JPMorgan to lock-in a specific interest rate level • This position will create an offsetting gain if rates increase and a loss if rates decrease Lump sum determination date • SERP participant will unwind the rate lock coincidental with the lump sum calculation • Rate lock settlement amount JPMorgan receives or pays will be determined by prevailing rates on that date • If rates have risen, the Participant will receive an unwind payment that will increase the lower lump sum • SERP administrator will make a single payment to the Participant reflecting the settlement value of the hedge The rate lock will offset any changes in the lump sum At inception – election date Rates increase Positive value Negative value T-lock is worth more (“in-themoney”) Plan lump sum decreases in value JPMorgan Rate lock agreement SERP Participant Unwind – determination date Rates decrease Positive value Plan lump sum increases in value SERP Administrator Net lump sum payment adjusted for hedge gain or loss SERP Participant CONFIDENTIAL Negative value T-lock is worth less (“out-ofthe-money”) Hedge gain or loss JPMorgan Note: This materials is presented for educational purposes only and may not be forwarded or otherwise distributed, in part or total, without the permission of J.P. Morgan 12
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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
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11. EXTINGUISHMENT OF CREDITORS’
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13. SPENDTHRIFT TRUSTS As previousl
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SECTION 4 Drafting and Administerin
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1. Supplemental&SpecialNeedsTrust B
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iii. Discretionary Trust Trusts cre
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v. Vehicle One vehicle used to tran
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ii. Legal Guardian It is generally
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ii. SSA Determination Anyone receiv
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eimburse the State following the be
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else uses the computer from time to
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h. Revocable vs. Irrevocable i. Spe
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Qualified Disability Trust (QDT) ex
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(1) An inventory of Trust assets an
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Assistance benefits paid on behalf
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SECTION 5 Notable North Dakota Nuan
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I. North Dakota Real Property A. No
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a Statement of Claim is recorded by
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1. Any grantee or grantee’s autho
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By North Dakota Information Technol
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insolvent estates. Has priority ove
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(2) Would be a permissible distribu
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o North Dakota has two (2) pooled t
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G. The value of currently owned min
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* * * * * * * * * * * * * * lease r
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eceived, are not considered to be t
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disqualifying transfer provisions i
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ONLINE NORTH DAKOTA RESOURCES Title
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Table of Contents The Beauty and Bu
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--volatility in the financial marke
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For the trustee: If an individual t
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VII. Duty to keep records and provi
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specific information like their fin
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An alternative structure might be t
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--Intellectual property which may i
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SECTION 7 “Bleak House” Reviste
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PROBATE INSTITUTE 2013 HARD TIMES:
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TIP THREE: FOR REALLY BAD FIDUCIARI
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with disfavor on attempts to depriv
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E. Undue influence 1. Must prove te
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3. The Partition statute allows adm
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APPENDIX 524.3-720 EXPENSES IN ESTA
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owner of the real property or the o
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524.3-911PARTITION FOR PURPOSE OF D
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STATE OF MINNESOTA COUNTY OF MCLEOD
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5. For such other and further relie
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Page 405 and 406: personal representatives determined
Page 407 and 408: notations in the memo portion indic
Page 409 and 410: Page 12 costs charged by private de
Page 411 and 412: The Well-Prepared Executive: Person
Page 429 and 430: Stock Options: Sales, Gifts, & Tran
Page 431 and 432: the stock has been held for more th
Page 433 and 434: the initial appraisal is arranged f
Page 435 and 436: not property for purposes of Sectio
Page 437 and 438: emains the owner for income tax pur
Page 439 and 440: will also be treated as owning inte
Page 441 and 442: ealm of the estate tax. This is con
Page 443 and 444: eneficiary, as the case may be, wil
Page 445 and 446: CONFIDENTIAL Appendix
Page 447 and 448: Summary of Option Strategies 5. to
Page 449 and 450: Summary of Option Strategies 10. Co
Page 451 and 452: Transferring an asset via a GRAT re
Page 453 and 454: A CRT can result in greater total v
Page 455: IRA Rollback Strategy Pension Rescu
Page 459 and 460: How does a 10b5-1 plan work? 1 2 3
Page 461 and 462: SECTION 9 Spousal Elections Under M
Page 463 and 464: 1. INTRODUCTION Minnesota, as in ma
Page 465 and 466: . 1969 Version In the 1969 statutor
Page 467 and 468: each other. 11 The statutory notes
Page 469 and 470: (b) Personal property not exceeding
Page 471 and 472: category includes properly gifted t
Page 473 and 474: .) Next, assets owned by the spouse
Page 475 and 476: 4. Unspoken fourth: The spouse and
Page 477 and 478: Table of Contents Crummey Power Pro
Page 479 and 480: however, that my Spouse’s power t
Page 481 and 482: Estate or the proceeds of such asse
Page 483 and 484: such Power Holder is entitled to wi
Page 485 and 486: 1.2 Discretionary Payments From Ini
Page 487 and 488: didn’t occur) a long time ago? 1
Page 489 and 490: Upon my spouse's incapacity or deat
Page 491 and 492: Trustees of the Separate Trusts *Op
Page 493 and 494: Unfilled Trustee Vacancy If the off
Page 495 and 496: the independent special trustee. An
Page 497 and 498: Removal and Replacement of Trust Ad
Page 499 and 500: Definitions 6 Compensation Any Trus
Page 501 and 502: Trust Asset Diversification and Con
Page 503 and 504: As a Grantor Retained Annuity Trust
Page 505 and 506: 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
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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
Page 631 and 632:
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
Page 637 and 638:
facility admission or readmission t
Page 639 and 640:
The NF LOC Initiative has been hard
Page 641 and 642:
was not [sic] made exclusively for
Page 643 and 644:
1. Prior to February 8, 2006, the p
Page 645 and 646:
follows: [Undue hardship] exists wh
Page 647 and 648:
claim in both Estate of Barg and In
Page 649 and 650:
federal law. See 42 U.S.C. § 1396p
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called "MA for Adults Without Child
Page 653 and 654:
The starting point for redesign of
Page 655 and 656:
programs, available in the State. S
Page 657 and 658:
If the enrollee is required to sati
Page 659 and 660:
Art. 2, Sec. 4, amends Minn. Stat.
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Art. 2, Sec. 30, amends Minn. Stat.
Page 663 and 664:
MARITAL DEDUCTION PLANNING: First C
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(1974); PLR 7902020 (ruling gift to
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(A) Then do your other language—d
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to any jurisdiction.” Michael Mul
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2) Fractional share: As the value o
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d) The amount subject to the electi
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Form 706 is due nine months from th
Page 677 and 678:
C. Gift Tax 1. EGTRRA partially sev
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three years, when Fred would have t
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equired beginning date, and they wi
Page 683:
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
Page 729 and 730:
when ordinarily due. Use, for examp
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SECTION 20 Portability Under the Ne
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I. HOW TO MAKE THE ELECTION PORTABI
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espect to such an estate, for beque
Page 743 and 744:
decedent, which together is the amo
Page 745 and 746:
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
Page 751 and 752:
(c) Credit limitation. The applicab
Page 753 and 754:
(7) Requirements of return— (i) G
Page 755 and 756:
property of the marital trust relat
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(ii) Application. H’s DSUE amount
Page 759 and 760:
(i) If the executor of the decedent
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Table of contents This section list
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death. Thus, the decedent’s DSUE
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SECTION 21 New Lawyer Panel: “Wha
Page 767 and 768:
I. Introduction Building & Managing
Page 769 and 770:
Being the beneficiary of a trust Fu
Page 771 and 772:
clients what you are doing for them
Page 773 and 774:
Be aware, however, that sometimes y
Page 775 and 776:
Estate and Trust Administration 101
Page 777 and 778:
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
Page 799 and 800:
Preparing Your First Estate and Gif
Page 801 and 802:
E. Other Notable Items There are a
Page 833 and 834:
SECTION 22 Small Estates Panel - Pr
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I. Introduction Disclaimers have lo
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epresentative.The writing should in
Page 839 and 840:
IV. The Disclaimer-Based Estate Pla
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Grandchild B $11,000 Grandchild C $
Page 843 and 844:
formula similar to the one used inW
Page 845 and 846:
Small Estates Panel Peter M. Hendri
Page 847 and 848:
assets must have been subject to an
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A. The Doctrine of Advancements, Ho
Page 851 and 852:
promissory notes and/or mortgages,
Page 853 and 854:
advancements. The Court opined that
Page 855 and 856:
a) Filing a gift tax return for gif
Page 857 and 858:
TABLE OF CONTENTS I. INTRODUCTION 1
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emains private both during the owne
Page 861 and 862:
for many of the same reasons as a w
Page 863 and 864:
I. REVOCATION BY SPOUSE NOT IN TITL
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TODD, the county Medical Assistance
Page 867 and 868:
PRACTICE TIP: To avoid the complica
Page 869 and 870:
Subd. 3.Rights of creditors and rig
Page 871 and 872:
A transfer on death deed that other
Page 873 and 874:
conveyance or transfer is condition
Page 875 and 876:
COMMENT: See above Question and Ans
Page 877 and 878:
SECTION 24 Sales of Real Estate: Fr
Page 879 and 880:
B. Listing Agreement 1. Key terms a
Page 881 and 882:
c. Deed/Title d. Deferred Taxes/Ass
Page 883 and 884:
A. “Property” Documents 1. Deed
Page 885 and 886:
SECTION 25 A Gift for All Donors: A
Page 887 and 888:
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
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n. For a blog, consider whether the
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EXHIBIT A Digital Asset Inventory I
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8. Is there any sensitive informati
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Table of Contents I. Client with Di
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1.6(b)(3) to reveal information abo
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