ALI-ABA Topical Courses Advanced Estate Planning Practice Update: Winter 2011 February 10, 2011 Video Webcast PROGRAM SCHEDULE FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIALS TABLE OF CONTENTS Page ix 1. Jeffrey N. Pennell: Advanced Estate Planning Practice Update 1 By Jeffrey N. Pennell Priority Guidance Plan & Gifts and Estates and Trusts 2 Portability 4 Assignment of QTIP Trust Interests Inter Vivos 6 Gift on Creation of FLP 7 Posthumously Conceived Children 10 Deduction Allowed for Settlement Agreement Distributions 11 Multi-Jurisdictional Practice (MJP) Ethics Concerns 12 Refund Action Jurisdiction 13 Trustee s Failure to File Form 706GS(D-1) 14 Estate Tax Interest Expense Deduction 15 Settlor of Offshore Asset Protection Trust Jailed 18 The Meaning of Transfer 20 Taxable Albeit Nongeneral Powers of Appointment 23 2. Larry P. Katzenstein: Advanced Estate Planning Practice Update 25 By Lawrence P. Katzenstein Carryover Basis Versus Estate Tax Regime For 2010 Decedents 26 No Self-Dealing Or Other Private Foundation Excise Tax On Termination of Charitable Remainder Trust Which Never Qualified In The First Place: PLR 201040021 28 One-Life Charitable Remainder Unitrust Becomes a Two-Life Trust: PLR 201042012 30 Another Stranger-Owned Life Insurance ( STOLI ) Case: Kramer vs. Phoenix Life Insurance Company 31 642(c) Deduction for Appreciated Property 33 Guidance Requested From IRS on Gift of an Income Interest in a Charitable Gift Annuity and Gift to a Single Member LLC Solely Owned by a Charity: Kallina Letter to IRS 34 Is a Distribution from a Private Foundation to a Limited Liability Company: IRS Information Letter 2010-0052 35 3. Virginia F. Coleman: Advanced Estate Planning Practice Update 37 By Virginia F. Coleman Thoughts on Drafting for Current Law and Beyond 38 Disclaimer Held Nonqualified: Tatum v. U.S. 42 Cairns v. Cairns: Pitfalls of the 5-or-5 power 44 vii xi xiii
Bruner v. Bruner: A New Twist on Reformation 46 Post-Mortem Division of IRAs into Inherited IRAs: PLR 201038019 48 Taproot Administrative Services v. Comm'r: IRA Not a Permitted S Corp Shareholder 49 DOL Advisory Opinion 2009-02A - Distributions from IRA and Trustee's Fees Do Not Give Rise to Prohibited Transactions 52 Florida Statute Extends Protection against Liability to ILIT Trustees 53 Crummey Trust is Permissible S Corp Shareholder: PLR 201039010 55 Paradee v. Paradee: Repeated and Flagrant Breaches of Trust with respect to Insurance Trust 56 Relief allowed from failure to make late inter vivos QTIP election: PLR 201025021 58 Standard for "Material Participation" by a Trust PLR201029014 59 4. Kathleen R. Sherby: Advanced Estate Planning Practice Update 61 By Kathleen R. Sherby Utilizing the Increased Gift Tax Applicable Exclusion 62 Gift Tax Applicable Exclusion After Sunset: Claw Back And The Need to Revisit Tax Apportionment Provisions 64 Generation-Skipping Exemption Allocation to 2010 Gifts and Use of Increased Exemption Amount in 2011 and 2012 67 My Uncle Is My Father When Is An Adoption Order Finding of Paternity Controlling to Foreclose Different Paternity Allegations: In re Estate of Renchen 68 Conflicts of Law for Trusts Post Death Creditor Rights for IRA: Bolander v.whittet 69 Rights of Creditors to Beneficiary s Inherited IRA: In Re: Thiem 72 Summons Enforced for Appraiser s Work Files: U.S. v. Mark Richey 74 New PTIN Requirements for Return Preparers 76 viii
PROGRAM SCHEDULE February 10, 2011 Program Schedule Eastern Central Mountain Pacific Alaska Hawaii National Teleseminar/Webcast 12:00 pm 11:00 am 10:00 am 9:00 am 8:00 am 7:00 am Adjournment 3:15 pm 2:15 pm 1:15 pm 12:15 pm 11:15 am 10:15 am You'll learn about the most important changes in estate planning practice from a nationally renowned faculty, led by Professor Jeffrey N. Pennell. This interactive course also gives you the opportunity to ask your questions via email before and during the live broadcast. Added bonus: free on-line access to the archived program. Topics: Factors for making the carryover basis election Portability for DSUEA (Deceased Spouse's Unused Exemption Amount) Drafting for flexibility during pre-2013 uncertainty Planning involving IRA beneficiary designations Charitable deduction planning Advance submission of questions for faculty is encouraged, so that these may be integrated into the discussion. Questions also may be submitted during the live webcast for response as time permits. Send advance questions to koconnor@ali-aba.org; and send questions during program to vquestions@ali-aba.org. Program Schedule (All times eastern standard) 12:00 p.m. Advanced Estate Planning Practice Update: Winter 2011 - Panel Discussion 3:15 p.m. Adjournment A 15 minute break will be announced during the program. Audience questions will be answered throughout the program. Total 60-minute hours of instruction: 3.0; 50-minute hours: 3.6 Suggested Prerequisite: Significant experience in Estate Planning. Educational Objective: Development of proficiency in performance of intricate and complex legal tasks within a narrow area, provision of information on recent legal developments; maintenance of professional competence as a practitioner. Level of Instruction: Advanced ix
Nothing in this program, the program materials, or communications stemming from the program (including questions and answers) should be considered as the rendering of legal advice. Non-lawyers should seek the advice of a licensed attorney in all legal matters. Registrants/readers should assure themselves that these presentations/materials/communications are still current and applicable at the time they are delivered or read. Neither ALI-ABA nor the speakers/authors can warrant that these presentations/ materials/communications will continue to be accurate, nor do they warrant them to be completely free of errors when delivered/published. Registrants/readers should verify statements before relying on them. These presentations/materials/communications reflect the viewpoints of their speakers/authors and do not necessarily express the opinions of ALI-ABA Continuing Professional Education or its sponsors. The members of this program's faculty are contributing their services to further the continuing legal education of their fellow members of the Bar. x
ALI-ABA Topical Courses Advanced Estate Planning Practice Update: Winter 2011 February 10, 2011 Video Webcast PLANNING CHAIR Professor Jeffrey N. Pennell Richard H. Clark Professor of Law Emory University School of Law 1301 Clifton Rd NE Atlanta, GA 30322-1013 FACULTY Virginia F. Coleman, Esquire Ropes & Gray LLP 800 Boylston Street, Suite 3600 Prudential Tower Boston, MA 02199-8015 Lawrence P. Katzenstein, Esquire Thompson Coburn, LLP 505 N. 7th Street, Suite 3400 1 US Bank Plaza Saint Louis, MO 63101-1612 Kathleen R. Sherby, Esquire Bryan Cave LLP 1 Metropolitan Square, Suite 3600 211 N Broadway Saint Louis, MO 63102-2769 xi
2
FACULTY BIOGRAPHIES PLANNING CHAIR Jeffrey N. Pennell, Atlanta, Georgia Richard H. Clark Professor of Law, Emory University School of Law B.S., J.D., Northwestern University Visiting Adjunct Professor, University of Miami School of Law Graduate LL.M. Program in Estate Planning (1980-1993, since 2000) Academic Fellow, American College of Trust and Estate Counsel (Regent, 1992-1998); Academician, International Academy of Estate and Trust Law Memberships: American Law Institute (Adviser, Restatement (3d) of Property (Wills and Other Donative Transfers); Adviser, Restatement (3d) of Trusts); American Bar Association (Chair, Probate & Trust Division Income and Transfer Tax Planning Group 2004-2006; Member of Council, 1990-1998, Real Property, Trust and Estate Section); Advisory Committee, Heckerling Institute on Estate Planning Publications include: CASNER & PENNELL ON ESTATE PLANNING (6th ed.)(3 vols. CCH); WEALTH TRANSFER PLANNING AND DRAFTING (West, 2005); ESTATE AND TRUST PLANNING (Co-Author) (ABA, 2005); FEDERAL WEALTH TRANSFER TAXATION (4th ed.)(west, 2003); ESTATE TAX MARITAL DEDUCTION (BNA Tax Management Portfolio: Estates, Gifts, and Trusts No. 843-2005); ESTATE TAX APPORTIONMENT (Co-Author) (BNA Tax Management Portfolio: Estates, Gifts, and Trusts No. 834-2001); INCOME TAXATION OF TRUSTS, ESTATES, GRANTORS AND BENEFICIARIES (West, 1987) Planning Chair, ALI-ABA Courses of Study, Estate Planning in Depth (1990-2003); Annual Estate Planning Update; Skills Training for Estate Planners (1995-2007); Advanced Estate Planning Techniques FACULTY Virginia F. Coleman, Boston, Massachusetts Ropes & Gray LLP Practice Virginia Coleman, a partner in the Private Client Group since 1984, focuses on estate planning and fiduciary income taxation. Honors & Awards The Best Lawyers in America (1997-2010) First Annual MCLE Scholar Mentor Award recipient (2008) Chambers USA: America's Leading Lawyers for Business (2008-2009) Massachusetts Super Lawyers (2004-2009) Massachusetts Super Lawyers "Top 50 Women" (2006) Estate Planner of the Year (2002), Boston Estate Planning Council xiii
Memberships & Affiliations Member, American Law Institute Fellow, American College of Trust and Estate Counsel (Regent, member of Employee Benefits and International Estate Planning committees) Member, Real Property, Probate and Trust Law, and Tax sections of the American Bar Association Academician, International Academy of Trust and Estate Law Member, Editorial Board of Estate Planning magazine Member, Estate Planning Curriculum Advisory Committee for MCLE Member, Editorial Board of the Practical Tax Lawyer Bar Admissions New York, 2004 Massachusetts, 1970 Education 1970, LL.B., cum laude, Harvard Law School 1966, A.B., magna cum laude, Radcliffe College; Phi Beta Kappa Lawrence P. Katzenstein, St. Louis, Missouri Thompson Coburn LLP A.B., Washington University; J.D., Harvard University Adjunct Professor, Washington University School of Law Fellowships: American College of Trust and Estate Counsel (Charitable Planning Committee) Honors: Listed in "Best Lawyers in America" Memberships: American Bar Association (Section of Taxation: Past Chair, Charitable Trust Subcommittee of Fiduciary Income Tax and Exempt Organizations Committee; Past Chair, Fiduciary Income Tax Committee); Missouri Bar Association; Bar Association of Metropolitan St. Louis; National Association of College and University Attorneys; New York University School of Law, National Center on Philanthropy and the Law (Board of Advisors); Saint Louis Symphony Orchestra (Trustee and Member of Executive Committee); American Civil Liberties Union of Eastern Missouri (Former President and Board Member); Citizens for Modern Transit (General Counsel, Past Board Member); Pershing Place Improvement Association (Trustee); St. Louis Zoo (Board of Trustees) Publications include: Tiger Tables actuarial software; How to Squeeze the Most Tax Benefits Out of Charitable Giving, ST. LOUIS LAW. (Nov. 2003) Planning Co-Chair, ALI-ABA Course of Study, Charitable Giving Techniques xiv
Kathleen R. Sherby, St. Louis, Missouri Bryan Cave LLP Kathleen Sherby's practice involves representation of private individuals in all aspects of wealth transfer planning, including the implementation of sophisticated planning techniques involving grantor retained annuity trusts, family limited partnerships/limited liability companies, charitable remainder trusts, charitable lead trusts and other similar wealth transfer techniques. Ms. Sherby has represented both trustees and beneficiaries on a wide variety of fiduciary issues and has advised trustees over the years as to their fiduciary duties in administering trusts. In addition, Ms. Sherby has represented the taxpayer in estate and gift tax audits, in U.S. District Court, the U.S. Tax Court, and in the Missouri Supreme Court. A particular focus of her practice is estate planning for retirement benefits, integrating the planning for minimization of transfer tax and income tax with the required minimum distribution rules. Ms. Sherby has represented many business owners in developing an effective business succession plan, which has included strategies to transition the business to the next generation as well as working through the sale of the business where appropriate. She has also advised trustees on handling and selling a business and real estate as unique trust assets. Ms. Sherby is a well know national lecturer on all of these topics at significant national conferences. An active participant in the estate planning bar, Ms. Sherby is a Fellow of the American College of Trust and Estate Counsel, and is currently Secretary and a Regent of the College and chair of the Employee Benefits in Estate Planning Committee and has served as Missouri State Chair. She has also served as chair of the Probate and Trust Committee of the Missouri Bar, as chair of the Probate Section of the Bar Association of Metropolitan St. Louis and as president of the Estate Planning Council of St. Louis. Areas of Concentration: Estate planning for retirement benefits, planning for privately held businesses including succession planning, all phases of estate planning, fiduciary and tax litigation, post mortem planning and trust administration including fiduciary income taxation and principal and income accounting, and the negotiation and preparation of marital agreements. xv
2