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approximately a 1.98% Norseman membership interest, rather than the 2.39% interest determined by the taxpayers’ appraiser. See Wandry at pp. 23 & 24. Applying the Wandry formula to our hypothetical situation above, the surviving spouse’s disclaimer might look something like this: I hereby disclaim a sufficient number of acres of that certain xxx County Minnesota real estate described on Exhibit A attached hereto so that the fair market value of said real estate for Minnesota and federal estate tax purposes shall be $1,000,000. Although the number of acres of real estate disclaimed is fixed as the date of this disclaimer, that number is based on the fair market value of the disclaimed real estate. I understand the value of the real estate as reported on the decedent’s estate return is subject to challenge by the Internal Revenue Service and/or the Minnesota Department of Revenue. If the IRS or the Minnesota Department of Revenue challenges such valuation and a final determination of a different value is made by the IRS, the Minnesota Department of Revenue or a court of law, the amount of land disclaimed shall be adjusted accordingly so that the value of the real estate disclaimed 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. Such a disclaimer would be a renunciation of a given dollar amount of the real estate, rather than a fixed percentage or fractional portion of the real estate. Under the terms of this disclaimer there would be transferred to the credit trust that percentage of the real estate that equaled $1,000,000. Consequently, there would be no adverse tax consequence if the value of the real estate as finally determined differed from the amount reported on the decedent’s estate tax return. If that were to be the case, the credit trust would simply be funded with a different percentage of real estate. This approach is preferable to a disclaimer of a fixed percentage or fraction of the real estate which can result in an over-funding of the credit trust if the value of the real estate is increased upon final determination. Signalingits continued disapproval of defined value clauses, the IRS has indicated it will not acquiesce in the Wandry decision. I.R.B. 2012-46 (November 13, 2012). Keep in mind, however, that Wandry was a gift tax case. While the IRs remains uncomfortable with taxpayers using defined value clauses to describe the amounts of their gifts, formula disclaimers have long been approved under the disclaimer regulations. Moreover, the disclaimer of a pecuniary portion of a hard-to-value asset was explicitly approved by the 8 th Circuit Court of Appeals in Estate of Christiansen v. Commissioner,130 T.C. 1 (2008) (reviewed by the Court), aff’d, 586 F.3d 1061 (8th Cir. 2009).Consequently, a pecuniary 9
formula similar to the one used inWandry can be a prudent way to describe the disclaimed portion of a hard-to-value asset. B. The Christiansen Case In Christiansen, Christine Christiansen Hamilton, the decedent’s only child, and the executor of the decedent’s estate, disclaimed her interest in the estate “as finallydetermined for federal estate tax purposes” as to all amounts over $6.35 million. The decedent’s Will provided that twenty-five percent of anydisclaimed amounts were to go to a charitable foundation. The Commissioner denied the estate’s claimed charitable deduction for amounts passing to the foundation as a result of the disclaimer maintaining that the parties’ agreed-upon adjustment to the valuation of certain partnership interests served as post-death, postdisclaimercontingencies that disqualified the disclaimer under Code §2518 and TreasuryRegulation §20.2055-2(b)(1). The Tax Court disagreed with the Commissioner and allowed the charitable deduction for the amounts passing to the foundation as a result of the partial disclaimer. Before the 8 th Circuit, the Commissioner argued that formula disclaimers that have the practical effect of disclaiming all amounts above a fixed-dollaramount should be disallowed. According to the Commissioner, disclaimers such as the one made by the decedent’s daughter fail to preserve a financialincentive for the Commissioner to audit an estate tax return becausewith such a disclaimerany post-challenge adjustment to the value of an estate would consist entirely of anincreased charitable donation. The Commissioner argued such disclaimersshould be categorically disqualified as against public policy because there would be no possibility ofenhanced tax receipts as an incentive for the Commissioner to audit the return andensure accurate valuation of the estate, The 8th Circuit Court of Appeals affirmed the Tax Court and held that the disclaimer executed by the decedent’s daughter was a valid partial disclaimer of a fixed dollar amount. The Court held that references to value “as finallydetermined for estate tax purposes” were not references that were dependent upon post-deathcontingencies that would disqualify a disclaimer. Because the only uncertainty at the time of the disclaimer was the calculation of the value to be placed on the foundation’s right to receivetwenty-five percent of the estate in excess of $6.35 million, and because no post-deathevents outside the context of the valuation process were alleged as post-deathcontingencies, the disclaimerwas a qualified disclaimer. Responding to the Commissioner’s assertion that a disclaimer of all amounts above a fixeddollaramount should be disallowed as against public policy, the Court declared that the Commissioner’s role is not merely to maximize taxreceipts and conduct litigation based on a calculus as to which cases will result in thegreatest collection; the Commissioner’s role is to enforce the tax laws. The Court stated it wasn’t necessary for the Commissioner to serve as a watchdog against the under-valuations of the disclaimed assets because with a fixed-dollaramount partial disclaimer, the contingentbeneficiaries taking the disclaimed property have an interest in ensuring that theexecutor or administrator does not under-report the estate’s value. Consequently, a partial disclaimer of a fixed pecuniary amount above a specified dollar amount is valid under the disclaimer regulations and does not contravene public policy. 10
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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
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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 and 840: IV. The Disclaimer-Based Estate Pla
Page 841: Grandchild B $11,000 Grandchild C $
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
Page 865 and 866: TODD, the county Medical Assistance
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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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
Page 901 and 902:
v. Income tax. The IRA with S as be
Page 903 and 904:
3. The trustee of the CLT makes def
Page 905 and 906:
V. PRIVATE FOUNDATIONS. A. Definiti
Page 907 and 908:
4. Net Investment Income. An excise
Page 909 and 910:
c. Ordinary Income Property. Only t
Page 911 and 912:
SECTION 26 Incentive/Disincentive P
Page 913 and 914:
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
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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