Probate & Trust Law Section Conference Manual ... - Minnesota CLE

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Law Update: Changes to Minnesota’s Statutory Short Form Power of Attorney Laura J. Garbe, Attorney, Erickson &Wessman, P.A. Jill A. Adkins, Attorney, Henningson & Snoxell, Ltd.* On April 24, 2013, Governor Dayton signed into law Chapter 23 of the 2013 Minnesota Session Laws. This CLE sessionprovides a brief history of this law and highlights the changes made to Minnesota Statutes Chapter 523, the legislative home of the Minnesota Statutory Short Form Power of Attorney. This CLE is not a comprehensive review of every aspect of Chapter 523 and the presenters assume the audience for this CLE is familiar with the Statutory Short Form Power of Attorney (hereinafter “SSF POA”). 5. History 5. About the Vulnerable Adult Justice Project (VAJP) The bill which became Session Law 23 originated with the Vulnerable Adult Justice Project (VAJP). The VAJP was formed in 2007 and is a statewide consortium of stakeholders interested in the well-being of vulnerable adults in Minnesota.The VAJP is led by Iris Freeman, an experienced lobbyist andAssociate Director of the Center forElder Justice & Policy at the William Mitchell College of Law. The VAJP’s monthly meetings at William Mitchell are attended by representatives from public advocacy organizations (i.e. AARP), city and county attorneys offices, the Minnesota Attorney General’s office, the Minnesota Department of Human Services, the Minnesota Department of Health, the Minnesota Department of Public Safety, law enforcement, county adult protective services, professional guardians and conservators, health care providers, senior housing and long term care services, elder and disability organizations, labor unions, and legal services. In addition, several private elder law attorneys attend VAJP meetings in their individual capacity (and not as official representatives of any section of the MSBA). The VAJP works to identify services gaps in the protection of vulnerable adults; identify gaps and flaws in the underlying public policies related to vulnerable adults; identify, debate and advocate for proposed solutions to gaps and flaws in public policies related to vulnerable adults; educate public officials about current and emerging issues related to vulnerable adults; actively promote changes in Minnesota law, rules and policies to protect vulnerable adults and provide redress for victims; identify issues related to vulnerable adults that need additional research; foster working relationships across jurisdictions and agencies; and participate in professional education and public awareness efforts (including hosting World Elder Abuse Awareness Day each year). The VAJP initiated bills which resulted in new law in the 2009, 2011, 2012 and 2013 legislative sessions. 2. About the Power of Attorney Committee of the VAJP 1
A committee was formed within the VAJP in 2011to explore changes to the Minnesota SSF POA that might lessen the chances for POA misuse. The committee was co-chaired by your presenters, both of whom felt strongly about preserving those aspects of the SSF POA which make it convenient and easy to use. Other members of the committee included individuals from legal services, AARP, Volunteers of America, the University of St. Thomas School of Law, other elder law attorneys, and law students in William Mitchell’s elder law program. Over a series of meetings, the Power of Attorney committee researched and discussed the Power of Attorney laws of other countries and other states, as well as the Uniform Power of Attorney Act. The committee co-chairs met with the chair of the Probate and Trust Law Section committee considering the Uniform Power of Attorney Act for possible adoption in Minnesota. The Probate and Trust Law Section eventually abandoned its work on the Uniform Act and made no 2013 legislative proposal. The VAJP committee rejected the Uniform Act for a number of reasons despite the Act containing significant protections against misuse. Certain stakeholders within the VAJP supported changes to the SSF POA that were far more drastic than were ultimately agreed upon. The Power of Attorney committee took a pragmatic approach, avoiding changes that would generate strong opposition from the Bar and could be costly to the court system. The committee discussed a number of changes that would have clarified the SSF POA in various ways but remained focused on those changes most likely to reduce misuse and financial exploitation. In addition, the committee focused on changes designed to enhance criminal and civil accountability. The new law differs significantly from the VAJP’s initial bill as first introduced in January 2013. Changes and amendments were made during the process of consultation with legislators, members of the bar, and representatives from other stakeholders including the banking industry. The bill passed both the House and the Senate without a single vote in opposition. B. Effective Date 5. Judicial Relief, Minn. Stat. section 523.26 – effective on August 1, 2013, and applies to powers of attorney executed before, on, or after that date (see 523.26 (b)). 2. Amendments made to the SSF POA form and to 523.24, subd 8 – effective for powers of attorney executed on or after January 1, 2014 (see 523.23 Subd 6). C. Changes to Chapter 523 (other than to the SSF POA form) – in numerical order 5. 523.20 Liability of parties refusing authority of attorney-in-fact to act on principals’ behalf. A different section (discussed below) of the new law adds an Important Notice to the Attorneysin-fact and requires the attorneys-in-fact to not only provide a specimen signature but also a signature acknowledging that s/he has read and understood the Important Notice. For SSF POA forms signed on or after January 1, 2014, the attorney-in-fact must have signed this 2
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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
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SECTION 22 Small Estates Panel - Pr
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I. Introduction Disclaimers have lo
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epresentative.The writing should in
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IV. The Disclaimer-Based Estate Pla
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Grandchild B $11,000 Grandchild C $
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formula similar to the one used inW
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Small Estates Panel Peter M. Hendri
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assets must have been subject to an
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A. The Doctrine of Advancements, Ho
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promissory notes and/or mortgages,
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advancements. The Court opined that
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a) Filing a gift tax return for gif
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TABLE OF CONTENTS I. INTRODUCTION 1
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emains private both during the owne
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for many of the same reasons as a w
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I. REVOCATION BY SPOUSE NOT IN TITL
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TODD, the county Medical Assistance
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PRACTICE TIP: To avoid the complica
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Subd. 3.Rights of creditors and rig
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A transfer on death deed that other
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conveyance or transfer is condition
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COMMENT: See above Question and Ans
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SECTION 24 Sales of Real Estate: Fr
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B. Listing Agreement 1. Key terms a
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c. Deed/Title d. Deferred Taxes/Ass
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A. “Property” Documents 1. Deed
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SECTION 25 A Gift for All Donors: A
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I. INTRODUCTION. Often philanthropi
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4. The trustee of a CRT may be an i
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4. If a trust is measured by the li
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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: SECTION 27 New Law Update - Changes
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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