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

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SECTION 13 Drafting Documents With the Corporate Fiduciary in Mind – “It Would Have Been Neat If…” Donna C. Mohr Kinney U.S. Trust, Bank of America Private Wealth Management Minneapolis The 2013 Probate & Trust Law Section Conference – June 10 & 11, 2013
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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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emains the owner for income tax pur
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will also be treated as owning inte
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ealm of the estate tax. This is con
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eneficiary, as the case may be, wil
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CONFIDENTIAL Appendix
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Summary of Option Strategies 5. to
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Summary of Option Strategies 10. Co
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Transferring an asset via a GRAT re
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A CRT can result in greater total v
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IRA Rollback Strategy Pension Rescu
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Use Interest Rate Swaps to Lock in
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How does a 10b5-1 plan work? 1 2 3
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SECTION 9 Spousal Elections Under M
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1. INTRODUCTION Minnesota, as in ma
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. 1969 Version In the 1969 statutor
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each other. 11 The statutory notes
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(b) Personal property not exceeding
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category includes properly gifted t
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.) Next, assets owned by the spouse
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4. Unspoken fourth: The spouse and
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Table of Contents Crummey Power Pro
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however, that my Spouse’s power t
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Estate or the proceeds of such asse
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such Power Holder is entitled to wi
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1.2 Discretionary Payments From Ini
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Page 495 and 496: the independent special trustee. An
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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
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Page 507 and 508: Granting and Exercising Powers of A
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Page 511 and 512: Single Fund QTIP Marital Trust Inco
Page 513 and 514: 5.8 Reverse QTIP Election. The Trus
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Page 517 and 518: Federal and Minnesota Individual Ta
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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
Page 560 and 561: Table of Contents Introduction ....
Page 562 and 563: . No Power to Reject Assets. 1. Cor
Page 564 and 565: Example of Trust f/b/o ”H.” I m
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Page 568 and 569: enough. A professional fiduciary is
Page 570 and 571: set expectations of the beneficiari
Page 572 and 573: Current Status of the Wisconsin Tru
Page 574 and 575: a. A trustee may limit the claims o
Page 576 and 577: a. Pourover wills for each spouse.
Page 578 and 579: d. Duty of the trustee to notify th
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Page 582 and 583: e. A trustee shall notify the quali
Page 584 and 585: y other states. The ULC provided us
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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
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the monthly contribution, monitorin
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Each state must have a transparent,
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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
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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(
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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
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invalidate any deed that is not a t
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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
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. 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
Page 898 and 899:
. 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
Page 916 and 917:
those who are members of a partners
Page 918 and 919:
V. Planning Techniques. Trusts are
Page 920 and 921:
property interest nor an enforceabl
Page 922 and 923:
VIII. Conclusion Estate planners sh
Page 924 and 925:
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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