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(2) Portability election upon filing of estate tax return. (3) Portability election not made; requirements for election not to apply. (4) Election irrevocable. (5) Estates eligible to make the election. (6) Persons permitted to make the election. (7) Requirements of return. (b) Computation required for portability election. (1) General rule. (2) Transitional rule. (c) Computation of the DSUE amount. (1) General rule. (2) Special rule to consider gift taxes paid by decedent. (3) [Reserved] (4) Special rule in case of property passing to qualified domestic trust. (5) Examples. (d) Authority to examine returns of decedent. (e) Effective/applicability date. (f) Expiration date. § 20.2010–3T Portability provisions applicable to the surviving spouse’s estate (temporary). (a) Surviving spouse’s estate limited to DSUE amount of last deceased spouse. (1) In general. (2) No DSUE amount available from last deceased spouse. (3) Identity of last deceased spouse unchanged by subsequent marriage or divorce. (b) Special rule in case of multiple deceased spouses and a previously-applied DSUE amount. (1) In general. (2) Example. (c) Date DSUE amount taken into consideration by surviving spouse’s estate. (1) General rule. (2) Special rule when property passes to surviving spouse in a qualified domestic trust. (d) Authority to examine returns of deceased spouses. (e) Availability of DSUE amount for estates of nonresidents who are not citizens. (f) Effective/applicability date. (g) Expiration date. ■ Par. 4. Section 20.2010–1T is added to read as follows: § 20.2010–1T Unified credit against estate tax; in general (temporary). (a) General rule. Section 2010(a) allows the estate of every decedent a credit against the estate tax imposed by section 2001. The allowable credit is the applicable credit amount. See paragraph (d)(1) of this section for an explanation of the term applicable credit amount. (b) Special rule in case of certain gifts made before 1977. The applicable credit amount allowable under paragraph (a) of this section must be reduced by an amount equal to 20 percent of the aggregate amount allowed as a specific exemption under section 2521 (as in effect before its repeal by the Tax Reform Act of 1976) for gifts made by the decedent after September 8, 1976, and before January 1, 1977. - 12 -
(c) Credit limitation. The applicable credit amount allowed under paragraph (a) of this section cannot exceed the amount of the estate tax imposed by section 2001. (d) Explanation of terms. The explanation of terms in this section applies to this section and to §§ 20.2010–2T and 20.2010–3T. (1) Applicable credit amount. The term applicable credit amount refers to the allowable credit against estate tax imposed by section 2001 and gift tax imposed by section 2501. The applicable credit amount equals the amount of the tentative tax that would be determined under section 2001(c) if the amount on which such tentative tax is to be computed were equal to the applicable exclusion amount. The applicable credit amount is determined by applying the unified rate schedule in section 2001(c) to the applicable exclusion amount. (2) Applicable exclusion amount. The applicable exclusion amount equals the sum of the basic exclusion amount and, in the case of a surviving spouse, the deceased spousal unused exclusion (DSUE) amount. (3) Basic exclusion amount. The basic exclusion amount is the sum of— (i) For any decedent dying in calendar year 2011, $5,000,000; and (ii) For any decedent dying after calendar year 2011, $5,000,000 multiplied by the cost-of-living adjustment determined under section 1(f)(3) for that calendar year by substituting ‘‘calendar year 2010’’ for ‘‘calendar year 1992’’ in section 1(f)(3)(B) and by rounding to the nearest multiple of $10,000. (4) Deceased spousal unused exclusion (DSUE) amount. The term DSUE amount refers, generally, to the unused portion of a decedent’s applicable exclusion amount to the extent this amount does not exceed the basic exclusion amount in effect in the year of the decedent’s death. For rules on computing the DSUE amount, see §§ 20.2010–2T(c) and 20.2010–3T(b). (5) Last deceased spouse. The term last deceased spouse means the most recently deceased individual who, at that individual’s death after December 31, 2010, was married to the surviving spouse. See §§ 20.2010–3T(a) and 25.2505–2T(a) of this chapter for additional rules pertaining to the identity of the last deceased spouse for purposes of determining the applicable exclusion amount of the surviving spouse. (e) Effective/applicability date. Paragraphs (d)(2), (d)(3), (d)(4), and (d)(5) of this section apply to the estates of decedents dying in calendar year 2011 or a subsequent year in which the applicable exclusion amount is determined under section 2010(c) of the Internal Revenue Code by adding the basic exclusion amount and, in the case of a surviving spouse, the DSUE amount. Paragraphs (a), (b), (c), and (d)(1) of this section apply to the estates of decedents dying on or after June 15, 2012. (f) Expiration date. The applicability of this section expires on or before June 15, 2015. ■Par. 5. Section 20.2010–2T is added to read as follows: § 20.2010–2T Portability provisions applicable to estate of a decedent survived by a spouse (temporary). (a) Election required for portability. To allow a decedent’s surviving spouse to take into account that decedent’s deceased spousal unused exclusion (DSUE) amount, the executor of the decedent’s estate must elect portability of the DSUE amount on a timely-filed Form 706, ‘‘United States Estate (and Generation-Skipping Transfer) Tax Return’’ (estate tax return). This election is referred to in this section and in § 20.2010–3T as the portability election. (1) Timely filing required. An estate that elects portability will be considered, for purposes of Subtitle B and Subtitle F of the Internal Revenue Code (Code), to be required to file a return - 13 -
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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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didn’t occur) a long time ago? 1
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Upon my spouse's incapacity or deat
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Trustees of the Separate Trusts *Op
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Unfilled Trustee Vacancy If the off
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the independent special trustee. An
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Removal and Replacement of Trust Ad
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Definitions 6 Compensation Any Trus
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Trust Asset Diversification and Con
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As a Grantor Retained Annuity Trust
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ultimate burning out of the sun and
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Granting and Exercising Powers of A
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POWER TO CHANGE LIMITED POWER INTO
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Single Fund QTIP Marital Trust Inco
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5.8 Reverse QTIP Election. The Trus
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SECTION 11 Federal and Minnesota In
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Federal and Minnesota Individual Ta
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qualifying charities. Distributions
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iii. In the Reesink case, taxpayer
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The 10% threshold applies to all ta
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A Baker’s Dozen of Dangerous Assu
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In short, domicile is the combinati
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choice of law process in the render
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Germany is one such example of a co
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The US State Department lists the v
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In every other case, a foreign trus
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SECTION 13 Drafting Documents With
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Drafting With the Corporate Trustee
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date, then include a copy with the
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step daughter two months before her
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2. Borrowing in an irrevocable trus
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estrictive access to principal. Con
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SECTION 14 The Current Status of Wi
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I. History of the Wisconsin Trust C
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d. A final accounting is required b
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a. ULC promulgated the uniform prin
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3. Irrevocable trusts may be modifi
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7. A trustee may delegate its dutie
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fiduciary or confidential relations
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6. The new code will eliminate the
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. The standard of care that applies
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23. The subchapter dealing with lia
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Electronic reproduction of 2011−1
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Fiduciaries and Fighting Families:
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3. Who should attend 4. Agenda or f
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TABLE OF CONTENTS I. INTRODUCTION .
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I. INTRODUCTION MEDICAL ASSISTANCE
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has decided to increase reimburseme
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the problems they cause for some co
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change only when Social Security pa
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PRACTICE TIP: When the Asset Assess
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2014. i. If the community spouse do
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g. making income or asset methodolo
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less than the asset’s value on th
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amount of the transfer was $25,000.
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Example: the transfer penalty and t
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allow a recipient's current income
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facility admission or readmission t
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The NF LOC Initiative has been hard
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was not [sic] made exclusively for
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1. Prior to February 8, 2006, the p
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follows: [Undue hardship] exists wh
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claim in both Estate of Barg and In
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federal law. See 42 U.S.C. § 1396p
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called "MA for Adults Without Child
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The starting point for redesign of
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programs, available in the State. S
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If the enrollee is required to sati
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Art. 2, Sec. 4, amends Minn. Stat.
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Art. 2, Sec. 30, amends Minn. Stat.
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MARITAL DEDUCTION PLANNING: First C
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(1974); PLR 7902020 (ruling gift to
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(A) Then do your other language—d
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to any jurisdiction.” Michael Mul
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2) Fractional share: As the value o
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d) The amount subject to the electi
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Form 706 is due nine months from th
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C. Gift Tax 1. EGTRRA partially sev
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three years, when Fred would have t
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equired beginning date, and they wi
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SECTION 18 Estate Planning Issues f
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Page 729 and 730: when ordinarily due. Use, for examp
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Page 741 and 742: espect to such an estate, for beque
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Page 753 and 754: (7) Requirements of return— (i) G
Page 755 and 756: property of the marital trust relat
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Page 759 and 760: (i) If the executor of the decedent
Page 761 and 762: Table of contents This section list
Page 763 and 764: death. Thus, the decedent’s DSUE
Page 765 and 766: 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
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Page 775 and 776: Estate and Trust Administration 101
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Page 779 and 780: 2. Other “Non-Probate” Assets S
Page 781 and 782: (ii) the pages of the trust agreeme
Page 783 and 784: The total value of the probate asse
Page 785 and 786: Surviving Your First Probate Procee
Page 787 and 788: 4. Closing the estate - Statement t
Page 789 and 790: Table of Contents Estate Planning t
Page 791 and 792: . In order to qualify for the $14,0
Page 793 and 794: 1. Minnesota does not have a gift t
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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
Page 897 and 898:
. 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
Page 903 and 904:
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
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
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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
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(3) The costs of initial whole body
Page 943 and 944:
SECTION 27 New Law Update - Changes
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A committee was formed within the V
Page 947 and 948:
than one attorney-in-fact is design
Page 949 and 950:
I, (the above named Principal),here
Page 951 and 952:
Acknowledgment of notice to attorne
Page 953 and 954:
IMPORTANT NOTICE TO THE ATTORNEY(S)
Page 955 and 956:
Estate Planning and Administration
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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,
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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
Page 979 and 980:
1.6(b)(3) to reveal information abo
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Probate & Trust Law Section Conference Manual ... - Minnesota CLE

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