Schedule and Faculty

Day 1

Monday, June 4, 2012

 

7:00 – 7:50 a.m.

REGISTRATION & CONTINENTAL BREAKFAST

Sponsored by Northern Trust

7:50 – 8:00 a.m.

WELCOME & INTRODUCTION

– Thomas H. Rauenhorst; Probate & Trust Law Section Chair

8:00 – 8:30 a.m.

Sex Post Facto: The Evolution of Trust and Estate Law Regarding Posthumous Conception (and Why We Should Care)

As more people rely on assisted reproduction and cryotechnology continues to improve, posthumous conception (the use of a deceased partner’s genetic material after his or her death) is becoming more common. This practice raises numerous legal questions unique to trust and estate law. For instance, should a posthumously conceived child share in the deceased parent’s estate? In a continuing trust for the decedent’s issue? Should it matter if the child is born more than one year after the parent’s death? Two years later? Ten years later? Should it matter whether the decedent consented to the posthumous use of his or her genetic material? These issues are not just theoretical. Though likely only a few of us have yet to address this issue with a client, a number of courts and handful of legislatures have. This presentation will summarize the various approaches adopted or proposed to date and provide an initial framework for discussing the issue with clients.

– Benjamin C. Carpenter & Sonny F. Miller

8:30 – 9:30 a.m.

Wealth Transfer Trends – An Overview of 7 Trends Affecting Estate Planning and Trust Management

Transfer taxes – a view from the far side, changes in capital markets, yield decline and the power to adjust/unitrust conversions, client mobility, boomer clients and their wealth orientation, changes in the American "family"– implications for estate planning and trust design; plus a little more depth on three issues: trust design and the reallocation of fiduciary responsibility, drafting to override the duty of diversification, and planning for state death taxes.

– R. Hugh Magill

9:30 – 10:30 a.m.

Planning for Retirement Benefits: Recent Developments

Learn what’s new and what’s on the horizon in estate and distribution planning for retirement benefits. Natalie Choate explains what Congress, the courts, and the IRS have done for (or to) our clients’ retirement benefits in the last year, including: new proposed alternate valuation regs: the IRS’s first word on IRA estate tax issues! The Paschal case – should all clients file Form 5329 every year? The year of the flip-flop: IRS rulings reverse field on IRAs in grantor trusts, NUA, post-death rollovers, hardship waivers, and more. Announcement 2011-81: IRS tries to head off inadvertent "prohibited transactions" by IRA investors. Estate planning for retirement benefits under the (temporary) estate tax law. And don’t forget: New tax rates are coming soon! How that affects benefits.

– Natalie B. Choate

10:30 – 11:00 a.m.

BREAK

11:00 a.m. – 12:00 p.m.

BREAKOUT SESSION A
 

1. The 194 Best and Worst Planning Ideas for Your Client’s Retirement Benefits

Your clients are bombarded with dreams and schemes designed to reduce the tax value of their retirement plans. Learn which ideas work, which ones probably don’t, and which will win your client a midnight visit from the IRS. Plus, learn the tried and true estate planning practices, the nifty distribution tricks used by those in the know, and cutting edge ideas for the daring. Seminar outline provides a handy checklist of almost 200 ideas – what each idea is, whether it works or not and where to find out more details; plus, thumbnail "client profiles," so the reader can go right to the ideas that his/her clients should consider. This seminar will emphasize areas of particular interest to your particular audience group (such as life insurance planning, trust drafting, Roth conversions, estate planning or lifetime distributions).

– Natalie B. Choate

 

2. Long Term Trust Design

Financial Sustainability; Grantor Intent versus Flexibility; Trust Design; Trust Modification; Trustee Selection and Succession; Statements of Material Purpose and Intent; Planning for Unique Assets.

– R. Hugh Magill

 

3. Herding Cats: Coordinating the Estate Settlement Process

Review of basic principals; practical takeaways for fiduciaries; useful resources to simplify the process; advice of how to avoid major mistakes; and definition of roles and responsibilities.

– Adam D. Cox

 

4. Qualified Small Business and Farm Property

A new provision found at Minn Stat., Section 291.03, Subd. 1, and Subds. 8-11, creates an additional up-to-$4 million Minnesota estate tax deduction on "qualified small business property" and "qualified farm property". This breakout session will explore the mechanics of the statute and how it impacts planning for clients.

– Jennifer A. Lammers

 

5. How to Analyze the Black Box – Inside the World of Insurance

How to analyze and compare alternative life insurance products and strategies. Fundamental design elements of life insurance, the limits of what can and cannot be known about products and their future performance, the financial and statistical concepts that are used to evaluate products and pricing, the special tools available to analyze product pricing issues, and the tricks and traps of product presentations.

– Robert G. Danielsen

 

6. How to Handle Debt Collectors in Insolvent Estates: Prying Cash from Decedents and their Families

Due to the economy, many decedents are dying with more debts than assets, and many debt collectors are becoming more aggressive in trying to collect from their estates or family members. Is the family liable for the debts of a decedent? What can a creditor do to collect a claim from a decedent under the Fair Debt Collection Practices Act? How can a creditor file a claim in probate court? What claims should be paid if there is not enough money in an estate to pay all of them? What assets are exempt from creditor’s claims? How to decide whether or not to open a probate file? How to be sure the attorney for the PR gets paid.

– Catherine R. Thatcher

 

7. Special Needs Trust Administration: Success Beyond Drafting

The administration of a Special Needs Trust has as much or more to do with keeping the beneficiary eligible for assistance programs as the drafting of the trust itself. Benefits can easily be lost if the trustee mishandles a transaction or miscategorizes the accounting. This session will review the basics of Special Needs Trust administration, suggest creative distribution techniques, cover the strategies needed to mange and report trust activity, explore the tax implications for Special Needs Trusts, identify common traps to avoid and help you create realistic expectations for the beneficiary and the trustee.

– Jeffrey W. Schmidt

 

8. Splitting "Heirs": Extracting Owners from Dysfunctional Family and Closely Held Businesses and Properties

Most trusts and estates attorneys have advised heirs caught in untenable joint ownership positions in family or closely-held businesses and real estate. These problems face both minority and controlling interests and sometimes cannot be avoided with even the best business succession and estate planning. Family dynamics often make it impossible for co-owners to navigate their way to a solution without good counsel.

– Wallace G. Hilke & Timothy S. Murphy

 

9. Estate and Probate Mediation: Communication Collaboration and Consensus-Building for Effective Results

Attendees will gain: better understanding of the mediation process; an ability to determine what situations are appropriate for mediation and make referral; an understanding of the interface between mediator and attorney advocate; be better able to assist clients to understand benefits of mediation; and able to provide effective advocacy during the mediation process. This panel will focus discussions on the benefits of mediation and facilitated family discussions in the area of Estate and Probate Law, including improving communication, maintaining family relationships, and assisting clients, siblings, and caregivers to reach a better understanding and resolution of issues related to important decision-making among family members.

– Bruce Kruger, John M. Lundblad, Jr., Janeen L. Massaros & Mary Frances M. Price

12:05 – 12:15 p.m.

PROBATE & TRUST LAW SECTION ANNUAL MEETING

12:15 – 1:15 p.m.

INSTITUTE LUNCHEON

Sponsored by First Lawyers Trust Company

1:15 – 2:15 p.m.

BREAKOUT SESSION B
 

10. Trust Litigation: Witness Preparation Issues, Document Preparation Issues, and Litigation of the Past, Present and Future

What issues should be considered about witnesses at the start of litigation and just prior to testimony? How do you manage the flow of discovery, depositions and documents? What are Judges expecting? Discuss practical tips for your next case. What are the latest trends in estate and trust litigation? What does the litigation of the future look like?

– Jacqueline M. Schuh

 

11. Planning, Drafting and Administration When the IRS Doesn’t Care – Small Estates Panel

Current issues in planning and administration; medical assistance issues in planning and administration; supplemental needs trusts and discretionary trusts.

– Peter M. Hendricks, James T. McNary & Trisha A. Vicario

 

12. Making Use of the $5 Million Gift Tax Exclusion Amount – They Say You Can’t Take It with You, But How Do You Give it Away?

Al least until the end of 2012 estate planners have a unique opportunity to advise clients on the transfer of wealth free of federal gift tax; this session will offer insights. When analyzing whether taxable gifts are appropriate for clients; techniques from the simple to the complex, including outright gifts, loan forgiveness, dynasty trusts, irrevocable insurance trusts, qualified personal residence trusts, grantor trusts, and possible future taxation of current gifts and other ways to take advantage of this unique opportunity in federal gift tax law.

– Robert W. Mairs

 

13. When and How to Use a Professional Fiduciary

Different types of professional fiduciaries, when would you use a professional fiduciary, how to pick a professional fiduciary, where to find a professional fiduciary, being a professional fiduciary, and how can a professional fiduciary make your job easier.

– Daniel R. Lodahl, Mary R. Watson & Daniel J. Steinhagen

 

14. What I Wish I Knew: "Must Know" Charitable Gift Concepts for Attorneys and Tax and Financial Advisors

Technical rules and traps for the unwary. This beginning to intermediate level session will cover the myriad rules and issues that estate planning attorneys and financial advisors should know when clients inquire about their lifetime and testamentary charitable gifts, including: income, gift and estate tax deduction rules; partial, restricted, and retained interest issues; split interest trust concepts; and concerns involving unusual assets.

– Angela T. Fogt & Sheryl G. Morrison

 

15. Didn’t I See This in a Movie Once?: Sightings of the Professional Responsibility Rules in Film

1.0 ethics credit applied for

Review of the Rules of Professional Responsibility; identifying, engaging and advising the client in various roles; maintaining awareness of multiple representation issues; and addressing conflicts before and during the representation.

– Jennifer S. Santini, Joel A. Sommers & Jayne E. Sykora

 

16. The Use of Defined Value Clauses for Gifts and Sales of Closely-Held Business Interests

The different types of defined value clauses – ones that work, and ones that don’t; the main impediment to expanding the use of defined value clauses in lifetime planning for gifts and sales; case law that supports the different types of defined value clauses; and case law that does not. Types of estate planning transactions where a defined value clause might be helpful and useful; should we all be using defined value clauses in our planning? What are the pros and cons?

– William S. Forsberg

 

17. Recording Deed 101: Everything You Need to Know to Record Your Deed Correctly the First Time

What are the statutory requirements to file deeds in Minnesota? Are there differences between abstract and Torrens filings; what should you know about filing transfer on death deeds; what is the effect of unrecorded deeds; and how does the new E-filing work?

– Suzanne M. Sandahl

 

18. Recent Tax Developments

This session will cover current trends, recent judicial, regulatory and statutory changes affecting tax, wealth management and estate planning practices and businesses, and will outline recommended strategies for managing the accompanying risks and capitalizing on the opportunities they present.

– John R. Bedosky

2:15 – 2:30 p.m.

BREAK

2:30 – 3:30 p.m.

BREAKOUT SESSION C
 

19. Attorney-Client Privilege After Death in Probate Litigation: Does the Privilege Survive?

The differences between privilege and rules of confidentiality; your subpoenaed for testimony; can you talk?; counsel for beneficiary wants the file, can you give it?; and these and other interesting questions answered.

– Rodney J. Mason & Robert A. McLeod

 

20. Getting Down to Business: Practical Estate Planning for the Family Business Owner

Identifying important components of a buy-sell agreement; developing an estate plan for the business owner; understanding issues surrounding recapitalizations, redemptions, and valuation of business interests; and how to incorporate charitable planning into a business owner’s estate plan.

– Anne L. Bjerken, Sally Stolen Grossman & Jessica B. Johnson

 

21. Using Minnesota’s Statutory Short Form Power of Attorney

What you can and can’t do; general and common law powers of attorney and an early look at the work of the subcommittee in studying potential adoption of the Uniform Power of Attorney Act.

– Andrew M. Baese

 

22. Using Alternative Investments in Trust Portfolios

The role of alternative investments (hedge funds, private equity, direct real estate, commodities, etc.) in trust portfolios, including: What are alternative investments? What role do alternative investments play in an investment portfolio? How are alternative investments beneficial to trust portfolios in particular? How does the use of alternative investments square with the Uniform Prudent Investor Act?

– David M. Dickman & Brian Thorkelson
– Michael P. Sampson (moderator)

 

23. Conveyance of Real Estate with Trust, Probate and Powers of Attorney

This session will provide guidance to the participants to understand the distinguishing characteristics of transfer by trust, power of attorney, probate and partition. Participants will learn the general considerations of receiving real estate title by trustee conveyances, powers of attorney, probate transfers and the necessary documentation to complete such transfers. A discussion will follow with transfers by partition and the proceedings resulting in the sale of such real property partition.

– Mark E. Utz

 

24. Spendthrift Trusts – Just Because You Have a Trust Doesn’t Mean You Can Spend the Money

What is a spendthrift trust; what can it accomplish; what can’t it accomplish; and can the beneficiary get around it?

– Randall W. Sayers

 

25. Trust Protectors

– P. Daniel Donohue

 

26. Mental Health and Addiction Issues in Older Adults

2-hour session
2.0 elimination of bias credits applied for

Learn about mental health and addiction issues and the realities, risk factors and resources specific to older adults. Understand unique barriers to getting help in older adults and the differences between dementia, grief and depression. The presenters will also discuss these issues in the context of lawyer colleagues and will touch on the ethical issues that should be considered when there is impairment. The program will offer a protocol to encourage someone to get help.

– Joan M. Bibelhausen & Roger Svendsen

 

27. Your Panel’s Pent-Up Pet Peeves

2-hour session

Do you ever review someone else’s documents or procedures (or your own – "what was I thinking?") and shake your head in amazement? We all have pet peeves about errors, omissions or oversights. The panel will describe their favorite (or least favorite) drafting, procedural and client relationship issues, focusing on "Best Practices" to avoid them. Bring your list and the panel will try to ferret out common and uncommon problems that can spell trouble.

– John R. Bedosky, Mark W. Greiner, E. Burke Hinds, Bridget A. Logstrom Koci, Charles T. (Chip) Parks, Jr. & Alan J. Yanowitz
– Kristine J. Merta (moderator)

3:30 – 3:45 p.m.

BREAK

3:45 – 4:45 p.m.

BREAKOUT SESSION D

Mental Health and Addiction Issues (continued)

Your Panel’s Pet Peeves (continued)

28. Medical Assistance Update

On December 1, 2011, the Minnesota Department of Human Services implemented much stricter rules for reducing asset transfer penalty periods by returning transferred assets. Effective for penalty periods imposed on or after December 1, 2011, all assets transferred for less than fair market value during the five-year look-back period must be returned in full to achieve any reduction of the penalty period. This presentation will discuss the impact this change will likely have on estate planning and gifting to family members. This presentation will also discuss the impact this change will likely have on uncollectible accounts receivable for nursing homes. In addition, this presentation will summarize any other changes to the medical assistance program of interest to probate attorneys made since the 2011 Probate and Trust Law Conference, including any changes made by the 2012 session of the Legislature.

– Julian J. Zweber

 

29. New Lawyer Panel: "What Law School Didn’t Teach Us"

This session will examine issues affecting new estate planning and probate and trust administration attorneys. Because many of the "routine" items that affect our daily practices were not taught, this session is meant to be a primer and a "how to" on various topics. Some of the topics to be discussed include: estate planning to reduce, defer or avoid taxes; gift, estate and fiduciary income tax returns; the basics of real estate transactions in Minnesota and recording 101; probate avoidance techniques; surviving your first probate proceeding; and the basics of probate and trust administration.

– Anne L. Bjerken, Wendy M. Brekken, Amy E. Papenhausen, Trisha A. Vicario & Cory R. Wessman

 

30. Frequently Encountered Income Tax Issues for Estate Planners

Potential income tax stumbling blocks, or opportunities, that may arise when creating or administering a trust or estate. Analysis will include: funding bequests and trusts with in-kind property, the separate share rule, and the power to adjust, among others.

– Kelli A. Enders & Marcia E. Urban

 

31. Post-Death Distributions from Retirement Accounts Focused on Distributions to Trusts

A summary of rules and examples of post-death required distributions; details on the rules for distributions to trusts’ specific rules for distributions to disability trusts; and a discussion of IRS positions.

– Bryan Jamison

 

32. Retirement Considerations

Timing issues for retirement, financial considerations, valuation, transition strategies, finding a successor, utilizing "of counsel", selling a practice, structuring the deal and more!

– Roy S. Ginsburg

 

33. Give It Back!

Recovering assets that should have been included as probate assets. These include pre-death assets diverted through a power of attorney, multiparty account or fraud and post-death assets that never made it to the Inventory.

– William G. Peterson

4:45 – 6:00 p.m.

INSTITUTE RECEPTION

Sponsored by Lowry Hill


 Day 2

Tuesday, June 5, 2012


7:30 – 8:00 a.m.

CONTINENTAL BREAKFAST

8:00 – 8:45 a.m.

Non-Tax Case Law Update

– Barry J. Newman

8:45 – 9:15 a.m.

Legislative Update/Trust Law Update

– Andrew M. Baese, Peter S. Hatinen & Christopher B. Hunt

9:15 – 9:30 a.m.

BREAK


MAIN PLENARY SESSION

9:30 – 10:30 a.m.

Take These Two and Call Me in 2013: And Other "Cutting-Edge" Alternative Remedies of Wealth Transfer

With the "sunset" of the wealth transfer tax provisions of the "Tax Relief Act of 2010" looming, estate planners have been encouraging their clients to act now. Is there a cost to waiting until the end of the year? Who should act now regardless of tax law changes? How do you build flexibility into the planning that you do today in case tax laws change in the future? This presentation discusses the latest research on the most compelling planning opportunities today: 2 techniques that remedy what we see as the true risk in estate planning today and a number of "alternative" remedies that are cutting-edge twists on well-trodden techniques.

– Paul S. Lee

 

10:30 – 11:30 a.m.

Pressing the Do-Over Button: Strategies for Modifying Wills and Trusts after Formation

This session will first consider the federal and state tax considerations underlying the decision whether or not, and if so how, to modify wills and trusts after formation. It will then consider those options for modification that have retroactive effect to date of creation, as well as those options whose effect is purely prospective. The session will conclude by considering the availability of litigation settlements successfully to make otherwise much needed modifications to wills and trusts.

– Joshua S. Rubenstein
 

ALTERNATE PLENARY SESSION

9:30 – 11:45 a.m. (with 15 minute break)

The Fear Factor – How Good Lawyers Get into Bad Ethical Trouble

2.0 ethics credits applied for

The scariest stories that lawyers hear are those tales where responsible lawyers who care about acting in an ethically appropriate way end up getting into disciplinary trouble. In this program, Stuart Teicher, Esq., "the CLE Performer" helps us understand and avoid the common missteps made by otherwise responsible attorneys. You’ll leave this seminar a safer, stronger attorney.

– Stuart I. Teicher


11:30 – 11:45 a.m.

BREAK

11:45 a.m. – 12:45 p.m.

BREAKOUT SESSION E
 

34. Innovative Charitable Lead Trust Structures: Bringing Economic Efficiencies to a Wealth Transfer Workhorse

An IRS ruling, combined with a low 7520 rate has injected new life into a rarely used estate planning vehicle: the CLAT; particularly if the CLAT is structured in a manner similar to what has been nicknamed the "Shark-Fin" CLAT. This presentation discusses: How a properly structured CLAT can transfer more wealth than a GRAT and a sale to an IDGT; Non-grantor and "intentionally defective" grantor CLATs; How to structure transactions that avoid violation of the private foundation rules; The investment implications of back-loaded annuity CLATs; Specific applications pertaining to contributions of FLP interests, private equity investments, preferred investment FLP interests, highly appreciated single stock positions and life insurance.

– Paul S. Lee

 

35. Estate Planning for Unmarried Couples: Detriment or Opportunity?

Many basic estate planning techniques are unavailable to unmarried couples – whether opposite sex couples who decline to marry, or same sex couples who are unable to marry or to have their marriage recognized. This talk will review basic estate planning principals in light of the new tax legislation, then examine in what respects such couples are discriminated against, how such discrimination can be mitigated, and where special planning opportunities in fact exist.

– Joshua S. Rubenstein

 

36. Dealing with County and State Collection Units to Identify and Settle Medical Assistance Recovery Claims

Minnesota is one of the most aggressive states in seeking recovery of medical assistance benefits from the estates of the recipient and the recipient’s spouse. To facilitate recovery of benefits, the statutes that usually apply to recovery of creditor claims from a decedent’s probate and non-probate assets have been modified over time to make the county and state collection units Super Creditors. This presentation will review the federal and state statutes that apply to recovery of MA benefits and discuss how and when these claims become due and payable, how the claims are secured, and how and when they might be challenged.

– Peter M. Hendricks & Julian J. Zweber

 

37. Probate Panel: What Do Other Practitioners Do?

This panel of experienced probate practitioners will discuss basic questions that many attorneys and paralegals have about probate proceedings, the administration probate v. non-probate assets; creditor‘s claims; and opening and closing issues. If you have specific questions that you would like the panel to address/discuss, please e-mail them to vobrien@minncle.org. In addition, this year, the panel will be using Automatic Voting System. This is an interactive tool that will allow the panel to poll the audience to give immediate input as to, when given multiple options, how they choose to handle specific matters.

– Andrea S. Breckner, Cynthia R. Costello, Daniel R. Donovan, Jr., Mary E. Shearen & Peggy Zdon
– Susan J. Link (moderator)

 

38. "From King Lear to 1000 Acres: The Problem of Estate Planning for the Farm and the Family

Characteristics of farm families that influence planning; ten obstacles to family business succession planning; five key areas of the ownership plan; the "inside-out" succession plan model; and strategies for dealing with family farm succession procedures.

– Thomas M. Hubler & James T. McNary

 

39. Using Trusts and Business Entities to "Keep the Cabin in the Family"

What issues should an attorney discuss with a client before advising the client as to the appropriate planning strategy for the family cabin?; what strategies provide the greatest protection against claims of creditors and divorce courts?; what strategies are most tax-efficient?; what terms should be included in the governing documents to promote family harmony and facilitate joint decision-making?; and what strategies can be used if the client determines the next generation should not share use and ownership of the property?

– Michael P. Sampson & Cameron R. Seybolt

 

40. ACTEC Task Force Dealing with Money Laundering

– David B. Gollin

 

41. Gifts and Gift Reporting: Preparing the Form 709

An overview of the transfer tax system; basics of completing Form 709; a review of the gift and generation-skipping transfer tax reporting issues for gifts in trust and the marital deduction from gift tax.

– Eileen M. Day

 

42. Brave New World: How To Discuss the Definition of Issue With Clients and Draft Language to Address Various Approaches

This breakout will build off the earlier plenary session regarding posthumous conception and focus on how to address the issue with your clients. Because posthumous conception raises not just purely legal questions, but numerous moral and ethical issues, this can be a sensitive issue to discuss with clients. Further, no one approach will satisfy all clients. This panel will raise issues your client may not have considered, propose various approaches to address these issues, and suggest sample language for each approach.

– Benjamin C. Carpenter, Sonny F. Miller & Steven H. Snyder