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Purchased on iStockIt has been mentioned here on Epilawg a few times already that Minnesota adopted a new trust statute. The specifics of the Minnesota Trust Code can be found in Minn. Ch. 501C (“MN Trust Code”) and has come to fruition by the countless hours and effort of a committee of local trusts and estates attorneys. The new statute will be effective as of January 1, 2016 but, under Minn. Stat. §501C.1304, will not only apply to trusts created after such date but also to any preexisting trusts.

In the spring, Julian Zebot wrote a series of posts that focused on the changes in the law that will impact Minnesota trust litigation. His posts can be found at:

Over the next few weeks, I will highlight some of the substantial changes in the new MN Trust Code that may be more helpful to the drafters of trust agreements.


For starters, the MN Trust Code now contains some definitions of terms that apply to the statutes under Minn. Ch. 501C. These will be helpful to practitioners, as they will no longer need to look elsewhere to define certain terms in trust agreements. See Minn. Stat. §501C.0103.


Additionally, Minn. Stat. §501C.0601 now requires that a settlor have the same capacity as he or she needs to execute a will in order to create, amend or revoke a revocable living trust. Under Minn. Stat. §524.2-501, a person who is of sound mind has the capacity to make a will. The committee decided to adopt this standard for capacity given that so often a revocable trust is being used as a will substitute.


The MN Trust Code requires that a revocable trust expressly grant the authority to be amended or revoked under Minn. Stat. §501C.0602, otherwise, the trust will be deemed irrevocable. The method by which a trust may be amended depends on how the trust was created. For example, if the trust was created under a written agreement, the trust may be amended “…by another writing manifesting clear and convincing evidence of the settlor’s intent to revoke or amend the trust.” See Minn. Stat. §501C.0602(c)(2)(i). Conversely, a trust that is created orally may be amended “…by any other method manifesting clear and convincing evidence of the settlor’s intent.” See Minn. Stat. §501C.0602(c)(2)(ii).

Lastly, an attorney-in-fact may exercise the power to amend or revoke a trust under their authority of a power of attorney as long as either the trust agreement, or the power of attorney, expressly grants the attorney-in-fact to have such authority. See Minn. Stat. §501C.0602(e).

In the next part of the series, I will outline the default and mandatory rules within the MN Trust Code. Contact an attorney for more information on, or with any questions about, the new trust law.


Free iStock PhotoRecently I read about a course that is offered by New York’s Zen Center for Contemplative Care called “How To Live This Year As If It Were Your Last.” The course is led by two Buddhist monks, who inform the students on the first day of class that they have nine months to live. For the next nine months, the students are encouraged to consider what they would do, what changes they would make in their lives, if they truly had a limited of time left to live.

What I appreciated about the course is that in the midst of the students contemplating more emotional and personal changes in life, the monks do address some legal and financial aspects of dying. During the course, they ensure the students have advanced directives in place and their affairs in order. They ask students to visit a funeral home and learn about the costs associated with a funeral and memorial service. Additionally, they have the students write their own obituaries to force the students to reflect on how they view their own lives and identify specific things they would want others to know about them.

The course is a fascinating concept to get individuals to face the inevitability of death head-on, while at the same time providing the time and tools to foster introspection on their current life. While most will not participate in this course, it does raise great ideas individuals can entertain to help plan for their own end of life – whenever that time will arrive.

The full story on the course and an interview with the monks can be found here.


Former NBA and reality TV star, Lamar Odom, was found unconscious on October 13, 2015, and remains hospitalized in Los Angeles. Odom and his wife, Khloe Kardashian, had been separated for years and were in the middle of a divorce that had not been finalized, allowing his estranged wife to serve as his health care agent and remain potential heir to his estate. According to reports, Kardashian has requested that the divorce be withdrawn and has refused to let Odom’s father visit him in the hospital.

Odom’s situation highlights the urgent need for anyone who is considering or has filed for divorce to immediately review and update his or her estate planning documents. Failure to have current estate planning leaves the spouse in place to make decisions regarding the individual’s health, including if and when to terminate treatment, transfer assets and inherit the estate. With proper, updated estate planning, such unfortunate circumstances and potential conflict and litigation amongst family members can be avoided.

Existing Estate Planning Documents

When an individual is considering divorce, his or her estate planning is likely to be low on the list of priorities. However, divorce is one of those significant changes in your family situation that should trigger an immediate review of your existing estate planning documents or preparation of documents if you do not have an estate plan.

The effect of a divorce on existing estate planning documents is determined by state law. In many states, an ex-spouse is deemed to have predeceased the creator of a Will or Revocable Living Trust, but not other types of trusts or designations. However, the laws do not affect the documents upon filing for divorce, only when the divorce is final. Since a divorce can take years to finalize and, as evidenced by Odom’s situation, a lot can happen between the decision to divorce and when it is final, state law should not be relied upon and estate planning issues should be addressed immediately as soon as a divorce is being considered.

No Estate Planning

A spouse who does not have existing estate planning documents should have similar concerns regarding unintended results to one who has outdated documents. In addition to the spouse inheriting the estate under the state’s laws, a health care provider will look to the spouse first to make health care decisions in the absence of a Health Care Power of Attorney, regardless of whether a divorce has been filed for.

In Odom’s case, it is unclear whether he and Kardashian had estate planning documents in place, but absent updated estate planning documents, the spouse is the default agent for health care decisions and an heir to his estate in the event of his death. In a vast majority of divorce cases, it is unlikely that one spouse wants the other to continue making financial and health care decisions on his or her behalf in case of incapacity or inherit the estate in case of death, but this is not assumed under the law and must be properly reflected in the individual’s estate planning documents.

Elective Share Can Trump Your Will

Having a shortcut estate plan, such as a simple Will, can backfire if a spouse dies before the divorce is final. In most states, a surviving spouse may renounce the Will of the deceased spouse and instead take an “elective share.” The elective share is a fraction, percentage or amount of the deceased spouse’s estate to which the surviving spouse is entitled in order to prevent an individual from completely disinheriting the surviving spouse. In Illinois, the fraction to which the surviving spouse is entitled is one-half of the probate estate if the decedent left no surviving descendants and one-third of the probate estate if the decedent did leave surviving descendants.

In other words, assume that upon making the decision to divorce, Odom revised his Will to leave everything to his children from his previous relationship. If Odom dies before the divorce is final, Kardashian could take the elective share and still receive a significant portion of Odom’s estate, despite his intention to disinherit her.

Trust assets, on the other hand, are not included in an individual’s probate estate. Thus, proper advice and planning can ensure that the deceased spouse’s assets pass in accordance with his or her wishes rather than by the elective share exception. As is the case with most families and relationships, the scenarios, intentions and planning options should be thoroughly discussed with an experienced estate planning attorney to understand all possibilities.

Updating Beneficiary Designations

A review of beneficiary designations should be a part of every estate plan, but it is especially important in situations where divorce is being considered or has been filed. Unlike designations in Wills, Revocable Living Trusts and Powers of Attorney, the designation of a spouse as beneficiary of a life insurance policy or account is not automatically revoked upon final divorce. Therefore, beneficiary designations on all policies and accounts must be reviewed when the decision to divorce has been made.

Assuming that Odom has a life insurance policy or retirement account on which Kardashian is the designated beneficiary, those designations will continue to apply if Odom passes away prior to updating them. Titling of assets and updating of designations is an important, yet too often neglected, part of your estate plan. Upon preparing an estate plan, your attorney should provide you with the specific language necessary to correctly designate primary and secondary beneficiaries for your assets.

Communicate With Your Estate Planning Attorney

Odom’s situation is a great example of the need to revisit your estate planning documents upon divorce because estate planning affects, and is affected by, changes in your family and financial situations. One of the primary goals of estate planning is to ensure that your estate is administered in accordance with your wishes rather than the laws of the state or the terms of outdated documents. When divorce is involved, this goal becomes even more important. For comprehensive advice that takes all of your family and financial situations into consideration, it is important to have an ongoing relationship with your estate planning attorney.

[Lamar, Khloe & the Urgency of Estate Planning was originally posted November 1, 2015 on]


DWI’s – The Devastating Impact on the Defendant

by James Gempeler November 9, 2015 Guest Articles

DWI’s are much more common than you may think. In fact, someone within your group of friends and/or family likely has a DWI, even if you don’t know about it. And let’s be clear, getting […]

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10 Things you must do before you die! (Not another bucket list article)

by Phillip Christenson November 4, 2015 Estate Planning 101

Bucket Lists have grown in popularity in the last few years. While it might seem important that you go skydiving, and swim with the dolphins before you die I would suggest taking a look at […]

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Conversion of an Exempt Asset

by Jennifer Santini October 27, 2015 Probate

As I wrote in my past article, Hands Off, Creditors!, when someone passes away intestate in Minnesota there are several assets that pass to a surviving spouse and/or children free from claims and creditors. As […]

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Donor Advised Funds go Mainstream

by Nick Scheibel October 22, 2015 Charity/Giving

In the four years since this site last addressed Donor Advised Funds, this tax planning tool has grown significantly in popularity. Between 2011 and 2013, total assets in Donor Advised Funds grew from $38 billion […]

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Nuts and Bolts of Real Estate Filings in Minnesota for Estates and Trusts Professionals

by Jeff Miller October 14, 2015 Uncategorized

As a freelance probate and estate planning legal assistant/paralegal (call me what you like) I work with a lot of real estate documents.  Most commonly I’m involved in preparing and recording… Quit Claim Deeds transferring […]

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Safely storing and sharing passwords

by Maggie Green October 7, 2015 Estate Planning 101

Maintaining passwords is an evolving game. Experts recommend that you keep different passwords for each online account, all with at least 8 characters comprised of uppercase, lowercase and at least one number/symbol. Personally, this is […]

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Is the will I had drafted in another state OK to use in Minnesota?

by Philip J. Ruce September 21, 2015 Uncategorized

  Minnesota is a pretty amazing state. We have great parks, great educational and business opportunities, great health care, and — let’s face it, — we’re ridiculously good looking.[1] But for all its up-sides, those […]

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Robin Williams’ Estate: (Update) Subject to Probate?

by Kim Prchal September 15, 2015 Uncategorized

In August 2014, I posted an article about Robin Williams’ estate plan.  Now, 13 months after his death more details have been revealed regarding his estate plan and unfortunately, the court battles have begun. So […]

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