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formula disclaimer might renounce “that portion of H’s estate that does not qualify for the federal estate tax marital deduction, plus the largest pecuniary amount (if any) that can be added to such amount without incurring state estate tax….” Treas. Reg. §25.2518-3(d), Example 20 is an example of such a fractional share disclaimer. A third approach to limiting the amount of the hard-to-value asset transferred to the credit share would be to disclaim an explicit pecuniary amount of the asset described by a formula. Reg. §25.2518-3(c) clearly authorizes the disclaimer of a pecuniary amount. A 2012 Tax Court case providesguidance as to what such a pecuniary formula disclaimer might look like. A. The Wandry Case In Wandry v. Commissioner, T.C. Memo 2012-88 (March 26, 2012) the Tax Court approved gifts of LLC unitsthe taxpayersmade using a formula clause that transferred stated dollar values (pecuniary amounts) to children and grandchildren. The Wandry decision caused quite a stir among commentators. By many accounts it was the major estate planning case of the year. Wandry was a gift tax case. It’s asignificant case because it was the first reported case to hold that a “formula transfer clause”(as opposed to a “formula allocation clause”) was valid. It also represented the first time a court had approved a defined value clause gift where a charity wasn’t involved. In Wandry the Court held the taxpayers made gifts of a specified dollar value of membership units rather than of fixed percentage interests in the LLC. Furthermore, the Court held such aformula transfer clause did not violate the condition subsequent prohibition of Commissioner v. Proctor, 142 F.2d824 (4 th Cir. 1944). The Court stated that the absence of a charity to take a portion of the property transferred under the Wandrys’ formula did not render the formula an impermissible condition subsequent or violate public policy. Even though the Wandrydecision is significant primarily to those doing gift or sale planning, the conceptual framework approved by the court is also instructive in the context of disclaimers of hard-to-value assets. In Wandry the taxpayers’ gifts of LLC units were described on assignments and memorandums of gift. Notably, the Tax Court recited the language of the gift documents verbatim on page 5 of its opinion. Each gift document provided: I hereby assign and transfer as gifts, effective as of January 1, 2004, a sufficient number of my Units as a Member of Norseman Capital, LLC, a Colorado limited liability company, so that the fair market value of such Units for federal gift tax purposes shall be as follows: Name Gift Amount Kenneth D. Wandry $261,000 Cynthia A. Wandry $261,000 Jared S. Wandry $261,000 Grandchild A $11,000 7
Grandchild B $11,000 Grandchild C $11,000 Grandchild D $11,000 Grandchild E $11,000 Total $1,099,000 Although the number of Units gifted is fixed on the date of the gift, that number is based on the fair market value of the gifted Units, which cannot be known on the date of the gift but must be determined after such date based on all relevant information as of that date. Furthermore, the value determined is subject to challenge by the Internal Revenue Service (“IRS”). I intend to have a good-faith determination of such value made by an independent third-party professional experienced in such matters and appropriately qualified make such a determination. Nevertheless, if after the number of gifted Units is determined based on such valuation, the IRS challenges such valuation and a final determination of a different value is made by the IRS or a court of law, the number of gifted Units shall be adjusted accordingly so that the value of the number of Units gifted to each person equals the amount set forth above, in the same manner as a federal estate tax formula marital deduction amount would be adjusted for a valuation redetermination by the IRS and/or a court of law. In the view of the Tax Court, the Wandry parents made gifts of specified dollar values of membership units rather than fixed percentage interests in the LLC. According to the Court, at all times the parents believed the gifts were of a dollar value, not a specified number of units. Wandryat p. 6. The Court analyzed the gifts as follows: 1. Under the terms of the gift documents, the donees were always entitled to receive predefined Norseman percentage interests which the gift documents essentially expressed as a mathematical formula. For each of the Wandry children the formula was expressed as: X = $261,000____ FMV of Norseman 2. This formula had one unknown - the value of Norseman’s assets on January 1, 2004. But though unknown, that value was constant. 3. Before and after the IRS audit the donees were entitled to receive the same Norseman percentage interests. Each donee-child was entitled to receive that Norseman percentage interest which had a value of $261,000. After the redetermination of the value of Norseman by the IRS, each of the donee children was entitled to receive 8
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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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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
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
Page 795 and 796: a. Within 9 months of a completed l
Page 797 and 798: in excess of the applicable estate
Page 799 and 800: Preparing Your First Estate and Gif
Page 801 and 802: E. Other Notable Items There are a
Page 833 and 834: SECTION 22 Small Estates Panel - Pr
Page 835 and 836: I. Introduction Disclaimers have lo
Page 837 and 838: epresentative.The writing should in
Page 839: IV. The Disclaimer-Based Estate Pla
Page 843 and 844: formula similar to the one used inW
Page 845 and 846: Small Estates Panel Peter M. Hendri
Page 847 and 848: assets must have been subject to an
Page 849 and 850: A. The Doctrine of Advancements, Ho
Page 851 and 852: promissory notes and/or mortgages,
Page 853 and 854: advancements. The Court opined that
Page 855 and 856: a) Filing a gift tax return for gif
Page 857 and 858: TABLE OF CONTENTS I. INTRODUCTION 1
Page 859 and 860: emains private both during the owne
Page 861 and 862: for many of the same reasons as a w
Page 863 and 864: I. REVOCATION BY SPOUSE NOT IN TITL
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Page 867 and 868: PRACTICE TIP: To avoid the complica
Page 869 and 870: Subd. 3.Rights of creditors and rig
Page 871 and 872: A transfer on death deed that other
Page 873 and 874: conveyance or transfer is condition
Page 875 and 876: COMMENT: See above Question and Ans
Page 877 and 878: SECTION 24 Sales of Real Estate: Fr
Page 879 and 880: B. Listing Agreement 1. Key terms a
Page 881 and 882: c. Deed/Title d. Deferred Taxes/Ass
Page 883 and 884: A. “Property” Documents 1. Deed
Page 885 and 886: SECTION 25 A Gift for All Donors: A
Page 887 and 888: I. INTRODUCTION. Often philanthropi
Page 889 and 890: 4. The trustee of a CRT may be an i
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4. If a trust is measured by the li
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III. RETIREMENT ACCOUNT GIFTS. A.
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C. Income Tax On Withdrawals from R
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. P might consider making such a gi
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vii. viii. Income taxes. Amounts di
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v. Income tax. The IRA with S as be
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3. The trustee of the CLT makes def
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V. PRIVATE FOUNDATIONS. A. Definiti
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4. Net Investment Income. An excise
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c. Ordinary Income Property. Only t
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SECTION 26 Incentive/Disincentive P
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PLANNING AND DRAFTING FOR THE USE O
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descendants, the client clearly wil
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E. Special Family Needs. In some fa
Page 919 and 920:
age and the child or grandchild cou
Page 921 and 922:
D. Division of Trust. Since incenti
Page 923 and 924:
SCHEDULE 1 SAMPLE PROVISIONS 1. Def
Page 925 and 926:
6. Distributions to Match the Benef
Page 927 and 928:
cooperate with the trustees in esta
Page 929 and 930:
16. Other Resources. In making disc
Page 931 and 932:
expenses; (B) to provide a Benefici
Page 933 and 934:
Grantors further recognize, should
Page 935 and 936:
dental insurance premiums, or other
Page 937 and 938:
the Trustee on a regular basis for
Page 939 and 940:
(B) (C) (D) Trustee’s Authority t
Page 941 and 942:
(3) The costs of initial whole body
Page 943 and 944:
SECTION 27 New Law Update - Changes
Page 945 and 946:
A committee was formed within the V
Page 947 and 948:
than one attorney-in-fact is design
Page 949 and 950:
I, (the above named Principal),here
Page 951 and 952:
Acknowledgment of notice to attorne
Page 953 and 954:
IMPORTANT NOTICE TO THE ATTORNEY(S)
Page 955 and 956:
Estate Planning and Administration
Page 957 and 958:
iii. Former attorney and Ebay selle
Page 959 and 960:
client to make such a list. In assi
Page 961 and 962:
1. A reminder to update the digital
Page 963 and 964:
the Will and not the Trustee in the
Page 965 and 966:
iii. Minn. Stat. § 609.891: Unauth
Page 967 and 968:
c. If device is password protected,
Page 969 and 970:
1. When planning ahead, review of s
Page 971 and 972:
n. For a blog, consider whether the
Page 973 and 974:
EXHIBIT A Digital Asset Inventory I
Page 975 and 976:
8. Is there any sensitive informati
Page 977 and 978:
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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