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do not significantly exceed (if at all) the fees charged by other professionals who provide money management services only, and represent a real bargain. Appointment of Initial Trustee 2 Trustee Succession I appoint _________________ and ________________ [myself and my spouse], to serve as the initial trustees hereunder (sometimes collectively referred to in this instrument as “trustee” or the “initial trustee”). Resignation of a Trustee A trustee may resign by giving notice to me. If I am deceased on incapacitated, a resigning trustee shall give notice to the income beneficiaries of the trust and to any other trustee then serving. Option To the extent not prohibited by applicable law, any trustee may resign at any time without court approval, whether or not a successor has been appointed, provided the resigning trustee complies with any applicable state law governing the resignation of the trustee that may not be waived by a governing instrument. Such resignation shall be by [acknowledged] instrument executed by the resigning trustee and delivered to me, or if I am deceased on incapacitated, to any other fiduciary (and any Trust Advisor) acting hereunder, or if none, to my eldest living descendant (who, if a trustee is resigning, is a beneficiary of the trust of which such trustee is resigning), or if none, then to the guardian of my eldest living descendant (who, if a trustee is resigning, is a beneficiary of the trust of which such trustee is resigning), or, if such descendant is a minor and no guardian for such minor has been appointed and is acting, then to the parent of such descendant or other individual with whom such minor resides.] Trustee Succession Before My Incapacity or Death I may remove any trustee with or without cause at any time. If a trustee is removed, resigns or cannot continue to serve for any reason, I may serve as sole trustee, appoint a trustee to serve with me or appoint a successor trustee. Trustee Succession After My Incapacity or Death This Section and the following Sections of this Article shall govern the removal and replacement of my trustees upon my incapacity or death. *Option 1 – Spouse may serve alone and name additional and successors who take priority over Settlor’s named successors Trustee Succession My spouse shall serve as my trustee and may act alone. My spouse may appoint additional and successor trustees (including a trustee whose appointment is designated for future effect), including my spouse, if my spouse is not then serving as a trustee. If my spouse at any time, or from time to time, is unable or unwilling to serve, my spouse may when able and willing assume or (as the case may be) resume office in lieu of any trustee for which this Section prescribes a tenure consisting of any period of inability or unwillingness. 2 This Section may not be necessary, if the trustee or trustees are named or defined in a separate article or in the portion identifying the parties to the trust agreement. It is included here for completeness. 11
Upon my spouse's incapacity or death, all of my individual trustees acting together shall have the power to appoint any additional or successor trustee. The appointment of any successor trustee for future effect may be revoked before such appointment becomes effective. *Option 1 a – 1 designated successor If my spouse fails or is unable to appoint a successor trustee, and no trustee (including a trustee whose appointment was designated for future effect) is willing or able to serve, then *[Name of Successor Trustee 1] shall serve as my successor trustee. *Option 1 b – list of designated successors If my spouse fails or is unable to appoint a successor trustee, and no trustee (including a trustee whose appointment was designated for future effect) is willing or able to serve, then, I appoint the following trustees, in the order named: *[Name of Successor Trustee 1], *[jointly, or either of them if one of them fails or ceases to serve,] then *[Name of Successor Trustee 2]*[, jointly, or either of them if one of them fails or ceases to serve]. *Option 1 c –designated successors appointed by majority of children. If my spouse fails or is unable to appoint a successor trustee, and no trustee (including a trustee whose appointment was designated for future effect) is willing or able to serve, then, my adult children, by majority vote, may appoint additional or successor trustees, including a descendant of mine. Trustee May Appoint Additional and Successor Trustees An additional trustee may be appointed by a then serving trustee (the “appointing trustee”) at any time (including a trustee whose appointment is designated for future effect), regardless of how many trustees are serving. An additional trustee appointed hereunder shall serve while the appointing trustee serves, and shall continue to serve if the appointing trustee fails or ceases to serve in lieu of any successor trustee named or identified in or pursuant to this Article by me, and any successor trustee named or identified herein by me shall serve only after the additional trustee so appointed is no longer serving. A trustee (the “appointing trustee”) may appoint successor trustees in accordance with the following: 1. Any trustee serving at any time may appoint a successor trustee to serve when the appointing trustee fails or ceases to serve as trustee (including a trustee whose appointment was designated for future effect). 2. If an appointing trustee names a successor trustee (including a trustee whose appointment was designated for future effect), and if I have also named or provided for the appointment of one or more successor trustees in or pursuant to this Article, the appointments I have made shall take priority, unless the appointing trustee 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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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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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 and 456: IRA Rollback Strategy Pension Rescu
Page 457 and 458: Use Interest Rate Swaps to Lock in
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: didn’t occur) a long time ago? 1
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
Page 507 and 508: Granting and Exercising Powers of A
Page 509 and 510: POWER TO CHANGE LIMITED POWER INTO
Page 511 and 512: Single Fund QTIP Marital Trust Inco
Page 513 and 514: 5.8 Reverse QTIP Election. The Trus
Page 515 and 516: SECTION 11 Federal and Minnesota In
Page 517 and 518: Federal and Minnesota Individual Ta
Page 519 and 520: qualifying charities. Distributions
Page 521 and 522: iii. In the Reesink case, taxpayer
Page 523 and 524: The 10% threshold applies to all ta
Page 525 and 526: A Baker’s Dozen of Dangerous Assu
Page 527 and 528: In short, domicile is the combinati
Page 529 and 530: choice of law process in the render
Page 531 and 532: Germany is one such example of a co
Page 533 and 534: The US State Department lists the v
Page 535 and 536: 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
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the Trustee on a regular basis for
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(B) (C) (D) Trustee’s Authority t
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(3) The costs of initial whole body
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SECTION 27 New Law Update - Changes
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A committee was formed within the V
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than one attorney-in-fact is design
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I, (the above named Principal),here
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Acknowledgment of notice to attorne
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IMPORTANT NOTICE TO THE ATTORNEY(S)
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Estate Planning and Administration
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iii. Former attorney and Ebay selle
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client to make such a list. In assi
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1. A reminder to update the digital
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the Will and not the Trustee in the
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iii. Minn. Stat. § 609.891: Unauth
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c. If device is password protected,
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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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Probate & Trust Law Section Conference Manual ... - Minnesota CLE

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