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Federal Tax Update – Important Cases, Rulings, Legislation and Regulations from the Past 12 Months Professor Samuel A. Donaldson Georgia State University College of Law Atlanta, GA The 2013 Probate & Trust Law Section Conference – June 10 & 11, 2013
FEDERAL TAX UPDATE Important Developments in Federal Income, Estate & Gift Taxation Affecting Individuals Samuel A. Donaldson Professor of Law Georgia State University College of Law Atlanta, Georgia Of Counsel Perkins Coie LLP Seattle, Washington © 2013. All rights reserved. TABLE OF CONTENTS Income Tax Planning After the American Taxpayer Relief Act of 2012 2 Estate and Gift Tax Planning After the American Taxpayer Relief Act of 2012 9 Defined Value Gifts – Mechanics and Ethical Issues 12 Recent Valuation Case of Interest (Elkins) 21 Making the Most of the Portability Election (including ethical issues facing fiduciaries) 24 The Impact of Windsor on Estate Planning for Unmarried Couples (including ethical issues) 33 1
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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
Page 29 and 30: also been the sole personal represe
Page 31 and 32: within the prescribed time set out
Page 33 and 34: mother’s estate, had breached fid
Page 35 and 36: plan. The court found that Brown wa
Page 37 and 38: power of attorney was, in fact, a l
Page 39 and 40: questions before the court were the
Page 41 and 42: E. Adverse Possession 1. *Jokela v.
Page 43 and 44: presumption. Finally, the court fou
Page 45 and 46: death, her daughter, in her capacit
Page 47 and 48: 3. Estate of Nuo Djeljaj, 954 N.Y.S
Page 49 and 50: C. Trust Construction but that the
Page 51 and 52: 4. *In the Matter of the Frank J. R
Page 53 and 54: adding the “general charitable in
Page 55 and 56: may provide that at least a substan
Page 57 and 58: including those created for the ben
Page 59 and 60: D. Spendthrift Clauses Finally, the
Page 61 and 62: decedent’s execution of a financi
Page 63 and 64: not negligent. On appeal, the court
Page 65 and 66: purchasing the insurance but determ
Page 67 and 68: H. Trust Accounting Disputes 1. Chu
Page 69 and 70: settlor’s death in 2005, the trus
Page 71 and 72: entitled to a jury trial because th
Page 73 and 74: other manner whatsoever disposing o
Page 75 and 76: the trial judge rejected - as highl
Page 77 and 78: F. Inter Vivos Gifts community over
Page 79: V. POWER OF ATTORNEY A. Improper Us
Page 83 and 84: • The preferential rates for net
Page 85 and 86: 3. Planning for the Wannabes: Deali
Page 87 and 88: Suppose, for example, that a marrie
Page 89 and 90: ESTATE AND GIFT TAX PLANNING AFTER
Page 91 and 92: after the first spouse’s death),
Page 93 and 94: First, they will want one or more g
Page 95 and 96: In Estate of Christiansen v. Commis
Page 97 and 98: Grandchild A 11,000 Grandchild B 11
Page 99 and 100: In the end, Wandry is correctly dec
Page 101 and 102: RECENT VALUATION CASE OF INTEREST (
Page 103 and 104: uncertainties, ahypothetical buyer
Page 105 and 106: So portability is achieved by givin
Page 107 and 108: (5) Special rules. (A) Election req
Page 109 and 110: million, and H2’s executor makes
Page 111 and 112: standard, but saves the rest for th
Page 113 and 114: THE IMAPCT OF WINDSOR ON ESTATE PLA
Page 115 and 116: Decanting: Refining an Old Vintage
Page 117 and 118: DECANTING: REFINING AN OLD VINTAGE
Page 119 and 120: XI. Trustee Liability .............
Page 121 and 122: D. Change Governing Law E. Trustee
Page 123 and 124: absolute discretion for some modifi
Page 125 and 126: K. Court Approval. Court approval i
Page 127 and 128: eliminate beneficiaries or change t
Page 129 and 130: 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
Page 529 and 530:
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
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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Page 599 and 600:
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Page 605 and 606:
Page 607 and 608:
Page 609 and 610:
Fiduciaries and Fighting Families:
Page 611 and 612:
3. Who should attend 4. Agenda or f
Page 613 and 614:
TABLE OF CONTENTS I. INTRODUCTION .
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I. INTRODUCTION MEDICAL ASSISTANCE
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has decided to increase reimburseme
Page 619 and 620:
the problems they cause for some co
Page 621 and 622:
change only when Social Security pa
Page 623 and 624:
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
Page 629 and 630:
less than the asset’s value on th
Page 631 and 632:
amount of the transfer was $25,000.
Page 633 and 634:
Example: the transfer penalty and t
Page 635 and 636:
allow a recipient's current income
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facility admission or readmission t
Page 639 and 640:
The NF LOC Initiative has been hard
Page 641 and 642:
was not [sic] made exclusively for
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1. Prior to February 8, 2006, the p
Page 645 and 646:
follows: [Undue hardship] exists wh
Page 647 and 648:
claim in both Estate of Barg and In
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federal law. See 42 U.S.C. § 1396p
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called "MA for Adults Without Child
Page 653 and 654:
The starting point for redesign of
Page 655 and 656:
programs, available in the State. S
Page 657 and 658:
If the enrollee is required to sati
Page 659 and 660:
Art. 2, Sec. 4, amends Minn. Stat.
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Art. 2, Sec. 30, amends Minn. Stat.
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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
Page 677 and 678:
C. Gift Tax 1. EGTRRA partially sev
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three years, when Fred would have t
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equired beginning date, and they wi
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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,
Page 853 and 854:
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
Page 883 and 884:
A. “Property” Documents 1. Deed
Page 885 and 886:
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
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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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