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invalidate any deed that is not a transfer on death deed and that is otherwise effective to convey title to the interests and estates described in the deed that is not recorded until after the death of the owner. Subd. 18.Notice, consent, and delivery not required. The signature, consent or agreement of, or notice to, a grantee beneficiary under a transfer on death deed, or delivery of the transfer on death deed to the grantee beneficiary, is not required for any purpose during the lifetime of the Grantor Owner. Subd. 19.Nonrevocation by will. A transfer on death deed that is executed, acknowledged, and recorded in accordance with this section is not revoked by the provisions of a will. COMMENT: Although the Grantor Owner may be confused about whether a will can revoke a TODD, the law is clear. The TODD, if validly executed and recorded (and unrevoked) will control, and the Grantor Owner’s will has not effect on the TODD. Subd. 20.Proof of survivorship and clearance from public assistance claims and liens; recording. An affidavit of identity and survivorship with a certified copy of a record of death as an attachment may be combined with a clearance certificate under this section and the combined documents may be recorded separately or as one document in each county in which the real estate described in the clearance certificate is located. The affidavit must include the name and mailing address of the person to whom future property tax statements should be sent. The affidavit, record of death, and clearance certificate, whether combined or separate, shall be prima facie evidence of the facts stated in each, and the registrar of titles may rely on the statements to transfer title to the property described in the clearance certificate. COMMENT: See above Question and Answer relating to Clearance of Clearance for Medical Assistance Claim. Subd. 21.After-acquired property. Except as provided in this subdivision, a transfer on death deed is not effective to transfer any interest in real property acquired by a Grantor Owner subsequent to the date of signing of a transfer on death deed. A Grantor Owner may provide by specific language in a transfer on death deed that the transfer on death deed will apply to any interest in the described property acquired by the Grantor Owner after the signing or recording of the deed. 17
COMMENT: See above Question and Answer relating to after-acquired property. Subd. 22.Anticipatory alienation prohibited. The interest of a grantee beneficiary under a transfer on death deed which has not yet become effective is not subject to alienation; assignment; encumbrance; appointment or anticipation by the beneficiary; garnishment; attachment; execution or bankruptcy proceedings; claims for alimony, support, or maintenance; payment of other obligations by any person against the beneficiary; or any other transfer, voluntary or involuntary, by or from any beneficiary. COMMENT: Because the beneficiary has no interest in the property while the Grantor Owner is alive, the beneficiary’s creditors also have no interest. Subd. 23.Clearance for public assistance claims and liens. Any person claiming an interest in real property conveyed or transferred by a transfer on death deed, or the person's attorney or other agent, may apply to the county agency in the county in which the real property is located for a clearance certificate for the real property described in the transfer on death deed. The application for a clearance certificate and the clearance certificate must contain the legal description of each parcel of property covered by the clearance certificate. The county agency shall provide a sufficient number of clearance certificates to allow a clearance certificate to be recorded in each county in which the real property described in the transfer on death deed is located. The real property described in the clearance certificate is bound by any conditions or other requirements imposed by the county agency as specified in the clearance certificate. If the real property is registered property, a new certificate of title must not be issued until the clearance certificate is recorded. If the clearance certificate shows the continuation of a medical assistance claim or lien after issuance of the clearance certificate, the real property remains subject to the claim or lien. If the real property is registered property, the clearance certificate must be carried forward as a memorial in any new certificate of title. The application shall contain the same information and shall be submitted, processed, and resolved in the same manner and on the same terms and conditions as provided in section 525.313 for a clearance certificate in a decree of descent proceeding, except that a copy of a notice of hearing does not have to accompany the application. The application may contain a statement that the applicant, after reasonably diligent inquiry, is not aware of the existence of a predeceased spouse or the existence of a claim which could be recovered under section 246.53, 256B.15, 256D.16, 261.04, or 514.981. If the county agency determines that a claim or lien exists under section 246.53, 256B.15, 256D.16, 261.04, or 514.981, the provisions of section 525.313 shall apply to collection, compromise, and settlement of the claim or lien. A person claiming an interest in real property transferred or conveyed by a transfer on death deed may petition or move the district court, as appropriate, in the county in which the real property is located or in the county in which a probate proceeding 18
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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
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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
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 and 842: Grandchild B $11,000 Grandchild C $
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
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: conveyance or transfer is condition
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
Page 891 and 892: 4. If a trust is measured by the li
Page 893 and 894: III. RETIREMENT ACCOUNT GIFTS. A.
Page 895 and 896: C. Income Tax On Withdrawals from R
Page 897 and 898: . P might consider making such a gi
Page 899 and 900: 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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