Date: Oct. 8, 2025

Presenters:

• Evan Nelson, Partner, Trust & Estate Litigation Group, Maslon LLP
  Evan describes himself as a “death and dirt” lawyer. He represents clients in trusts and estate disputes, which often come to a head after a family member has died, and in real estate litigation, where clients dispute who owns and controls access to "dirt." Because the two often intersect, as people will gift land (or attempt to do so) via their wills or trusts, Evan’s distinct capabilities prove particularly beneficial. Trust and estate law is written to balance the interests of fiduciaries and beneficiaries. Evan has significant litigation experience representing both sides, and he enjoys using that experience to craft a successful litigation strategy tailored for either type of client.
• Nate Ajouri, Associate, Trust & Estate Litigation Group, Maslon LLP
  Nate helps fiduciaries and individuals navigate often complex probate and estate litigation matters. He also works with a broad spectrum of organizations in business, commercial, and municipal litigation. Nate is dedicated to helping clients through all stages of the process, working closely with them to achieve their goals. He often draws upon his experiences living and studying internationally to offer a unique perspective on his clients' concerns.
• Kelley Scrocca, Counsel, Estate Planning Group, Maslon LLP
  Kelley is a highly experienced trust and estate attorney who specializes in assisting ultra high net worth clients with estate planning, asset protection planning, and complex trust administration. She has represented a wide range of individuals, from professional athletes to ranch owners to members of the U.S. Congress. Kelley works closely with both clients and their families to understand their goals, facilitate wealth transfer, and establish an enduring legacy for future generations.

Continuing Education: Maslon will seek approval with the Minnesota State Board of Continuing Legal Education for 1.0 hour of standard CLE credit, and with American Bankers Association (ABA) Professional Certifications for the equivalent Certified Trust and Fiduciary Advisor (CTFA) credit.

To register, please contact us at info@maslon.com.

Only three other Minnesota firms were ranked Band 1, and only 10 other Minnesota private wealth law attorneys achieved top ranking.

The guide identifies top lawyers and law firms from around the world for private wealth law based on extensive interviews and research to assess technical legal ability, client service, depth of team, commercial vision and business understanding, diligence, value, and other qualities most valued by clients.

To read what clients said about Maslon's trust and estate practice, and about Mike, Julian, and Susan, see: Maslon LLP: Chambers High Net Worth Profile.

About Chambers and Partners
Since 1969, London-based Chambers and Partners has published world-famous guides to the legal profession. A team of over 200 researchers conducts continuous, in-depth telephone research for all guides.

Maslon has sought approval with the Minnesota State Board of Continuing Legal Education for 1.0 hour of standard CLE credit, and with the American Bankers Association for 1.0 hour of CTFA credit. Both applications are pending. We will notify participants upon approval.

To register, please write to Maslon.

Julian focuses his legal practice on probate, fiduciary, and trust litigation as well as business and commercial litigation. He has counseled and represented individual and business clients in both federal and state courts as well as arbitration proceedings, and he has handled matters for clients at all stages of the litigation process, including mediation, trials, and appeals.

Nate helps fiduciaries and individuals navigate often complex probate and estate litigation matters. He also works with a broad spectrum of organizations in business, commercial, and municipal litigation. Nate is dedicated to helping clients through all stages of the process, working closely with them to achieve their goals.

Yemaya is an attorney in Maslon's Estate Planning Group who works with clients to help them achieve their wealth management and legacy goals. She understands the importance of listening carefully to clients’ concerns regarding their financial future, business succession, and family needs.

Program Description

It’s been said that best laid plans often go awry. Perhaps no one knows this better than the advisor or counsel tasked with helping high net worth clients create and execute plans for the transfer of significant assets, a process often complicated by unforeseen circumstances and complex family dynamics. Helping such clients maximize the impact of their assets requires sophisticated and practical strategies, as well as command of the evolving legislation and case law relating to both tax and wealth. In this interactive forum, financial advisors, attorneys, and other wealth management professionals will discuss proven practices for crafting resilient estate and succession plans, as well as lessons learned in disputes involving the same.

Agenda

• 9-9:30 a.m. | Registration & Breakfast
• 9:30-10:30 a.m. | Legacy Building Blueprint: Advanced estate, tax, and business succession planning for high net worth individuals and families
• 10:30-10:45 a.m. | Break
• 10:45-11:45 a.m. | Best Laid Plans: How litigation can defend, explore, and even undo Settlor's intent 
• 11:45 a.m.-1 p.m. | Networking Lunch

Panel 1 | Legacy Building Blueprint: Advanced estate, tax, and business succession planning for high net worth individuals and families

Wealth management professionals carry the important responsibility of helping clients identify how their assets will be used to bring about their desired legacy. But as Lewis Carroll once said, "If you don't know where you're going, any road will get you there." This presentation will provide varied perspectives on how and when to help clients define legacy, including that it need not begin at death. Presenters will cover best practices for maximizing wealth from a variety of sources—including business, accumulated, and inherited assets—as well as tax-efficient strategies for enjoying and sharing wealth during one’s lifetime—from early wealth transfer and wise spending to witnessing the profound impact of charitable contributions. Finally, we'll address important upcoming tax law changes to help ensure your clients are well-prepared for the future.

• Moderator: Matthew Frerichs, Partner, Maslon LLP
• Panelists:
  • Angela Alvig, CPA, Founder & Personal Wealth CFO, Simplify Wealth LLC
  • Sean Hauenstein, CPA, Partner, Copeland Buhl & Company PLLP
  • Michael Sampson, Partner, Maslon LLP
  • Peter Slocum, Managing Director, Bayview Capital

Panel 2 | Best Laid Plans: How litigation can defend, explore, and even undo Settlor's intent

Few people anticipate that their carefully constructed estate plan could one day become the subject of litigation. When disputes do arise, they often revolve around settlors’ intentions—or at least what people think settlors intended. In this presentation, panelists will discuss "red flags" in wealth transfer planning that can indicate some likelihood of disputes, e.g., favored siblings, informational asymmetry, and beliefs about what Mom or Dad "really" wanted. Panelists will also discuss several mechanisms in the probate and trusts codes that can be used to resolve such disputes.

• Moderator: Evan Nelson, Partner, Maslon LLP
• Panelists:
  • Carly Johnson, Associate, Maslon LLP
  • Robyn Ingber, Trust & Estate Strategist, NorthRock Partners
  • Jason Schuller, Sr. Estate Planning, Trust & Legal Consultant, Fiduciary Counselling, Inc.

Registration

Please contact us to learn more.

Those interested in attending may contact Emily Lawson at emily.lawson@maslon.com or 612.672.8253.

Julian focuses his legal practice on probate, fiduciary, and trust litigation as well as business and commercial litigation. He has counseled and represented individual and business clients in both federal and state courts as well as arbitration proceedings, and he has handled matters for clients at all stages of the litigation process, including mediation, trials, and appeals.

Nate helps fiduciaries and individuals navigate often complex probate and estate litigation matters. He also works with a broad spectrum of organizations in business, commercial, and municipal litigation. Nate is dedicated to helping clients through all stages of the process, working closely with them to achieve their goals.

Yemaya is an attorney in Maslon's Estate Planning Group who works with clients to help them achieve their wealth management and legacy goals. She understands the importance of listening carefully to clients’ concerns regarding their financial future, business succession, and family needs.

For more information or to register, go to Minnesota CLE: "Navigating Diverse Cultural Expectations and Approaches to Wealth Transfer."

Attendees of the 2024 Probate and Trust Law Section Conference may attend this webcast free of charge.

Evan, a litigation partner, describes himself as a “death and dirt” lawyer. He represents clients in trusts and estate disputes, which often come to a head after a family member has died, and in real estate litigation, where clients dispute who owns and controls access to "dirt." Because the two often intersect, as people will gift land (or attempt to do so) via their wills or trusts, Evan’s distinct capabilities prove particularly beneficial.

Peter is a litigation attorney who has successfully represented clients across a broad range of matters, including trusts and estates disputes, shareholder disputes in closely held corporations, business torts, and breaches of contract. Prior to law school, Peter received a Ph.D. from Cornell University in Islamic law. His dissertation focused on the legal development of the Islamic trust or waqf during the first centuries of Islam.

A buy-sell agreement is an agreement that outlines what happens to an owner’s share in an entity when that owner desires to transfer shares upon their death or departure. Buy-sell agreements are frequently used by closely held corporations, LLCs, and partnerships to facilitate transitions in ownership. Connelly has far-reaching consequences for any company with a buy-sell agreement funded by life insurance.

A Tale of Two Brothers

Two brothers—Michael and Thomas Connelly—were the only shareholders in a small building supply corporation. Because they wanted the company to stay in the family upon either of their deaths, they entered into a buy-sell agreement requiring the company to buy the shares of the first brother to die if the surviving brother declined to purchase them. The company obtained a life insurance policy on each brother to make sure it would have enough money to satisfy this requirement. 

When Michael died, Thomas elected not to purchase Michael’s shares, triggering the company’s purchase obligation. The company used the $3 million in life insurance proceeds it received as a result of Michael’s death to buy the shares. As executor of Michael’s estate, Thomas was required to file a federal estate tax return detailing the value of Michael’s assets, including his shares in the company. Thomas engaged a third party who determined that Michael’s shares in the company were worth $3 million; however, the third party excluded the life insurance proceeds when determining the fair market value of the company. Thomas reported the $3 million value on the estate tax return, relying on the Eleventh Circuit’s decision in Estate of Blount, which held that insurance proceeds should not be included in the value of a corporation when they are “offset by an obligation to pay those proceeds to the estate in a stock buyout,” 428 F.3d 1338, 1345.  

The IRS disagreed with Thomas’s reasoning. During its audit of Michael’s estate, the IRS contended that the total valuation of the company should include the life insurance proceeds—thereby making the total value of the company $6.86 million, rather than $3.86 million, when Michael died. Accordingly, the IRS said that Michael’s estate should have paid higher taxes based on the higher valuation of Michael’s stock. The estate paid the taxes and then sued the IRS for a refund. 

Supreme Court: Life Insurance Counts in Estate Tax Valuation

The case made it all the way to the Supreme Court. The dispute focused on the inclusion of the life insurance proceeds as part of the company’s total fair market value for purposes of the estate tax. The Supreme Court sided with the IRS in a unanimous decision, holding that life insurance proceeds that will be used to redeem a decedent’s shares must be counted when calculating the value of those shares for estate tax purposes. The court emphasized that the point of the estate tax is to assess the value of Michael’s shares at the time he died—even if the value would be drastically different a day later, once the life insurance proceeds were paid out.

What It Means for Your Business

A better understanding of the consequences of their buy-sell agreement may have prevented years of litigation for the Connelly family. There were alternate options available. The brothers could have purchased life insurance policies on each other, rather than having the company take out the life insurance. This structure, known as a cross-purchase agreement, would have placed the life insurance proceeds outside the company’s assets, potentially reducing the estate tax burden. (It is important to note that a cross-purchase agreement may have had different tax consequences for the brothers personally, but would have avoided a situation where the company experienced a stark increase in valuation.)

Connelly affects any company—including corporations, LLCs, and partnerships—with a buy-sell agreement funded by life insurance. Companies utilizing buy-sell agreements funded by life insurance should promptly review these agreements to ensure the best possible arrangement is in place to accomplish their owners’ goals and minimize tax liability.

We Can Help

Each estate plan is unique to the individual’s circumstances and wishes. If you own shares in a closely held company, it is imperative that you fully understand the tax implications of both your business succession plan and estate plan. Maslon’s experienced Estate Planning and Corporate groups can work together to help you navigate the complexities of estate planning for closely held businesses to ensure your wishes are met and tax liabilities are minimized.

For context, a guardian is a person appointed by the court to have custody and make care and other non-financial decisions on behalf of a person subject to guardianship. Guardians, under the Probate Code, have “the duty to provide for the care, comfort, and maintenance needs of the person subject to guardianship ….” Minn. Stat. § 524.5-313(c)(2). Until the new legislation becomes effective on Aug. 1, 2024, a guardian may be removed for failing to satisfy this duty, “but the guardian shall have no personal or monetary liability ….”

In the 2022 case Zika v. Elder Care of Minnesota, the Minnesota Court of Appeals described this provision as providing a guardian statutory immunity from a negligence claim. 979 N.W.2d 472, 479. While a resident at an elder care facility, Jean Krause was the victim of a sexual assault. Naree Weaver, who was Krause’s guardian, was notified of the assault; however, Weaver did not seek, and Krause did not receive, trauma treatment related to the assault. The personal representative of Krause’s estate alleged that Weaver was negligent in her duties to provide for the “care, comfort, and maintenance needs of the person subject to guardianship.” The trial court dismissed the negligence claims, relying on the immunity provided by the then-current language of Minn. Stat. § 524.5-313.

On May 24, 2024, Governor Tim Walz signed legislation that abolished this immunity. The new legislation provides a cause of action to hold a guardian personally liable for any harm caused to a person subject to a guardianship due to the guardian’s “reckless or willful misconduct, or gross negligence.” A claim for ordinary negligence still appears to be prohibited by the statute.

Specifically, the new legislation amends Section 524.5-313(c)(2) to remove the sentence that had provided, “Failure to satisfy the needs and requirements of this clause shall be grounds for removal of a private guardian, but the guardian shall have no personal or monetary liability.” Instead, Section 524.5-315 has added subsection (f) to provide that “Failure to satisfy the duties of a guardian under section 524.5-313, paragraph (c), shall be grounds for removal of a private guardian, but the guardian shall not be held liable for acts or omissions made in the discharge of the guardian's duties except for acts or omissions that result in harm to the person subject to guardianship and that constitute reckless or willful misconduct, or gross negligence.” (Emphasis added.) This legislation will become effective on Aug. 1, 2024 and “applies to causes of action accruing on or after that date.”

It remains to be seen how courts will define “reckless or willful misconduct, or gross negligence” in the context of a guardian’s conduct. There may be questions whether the facts in Zika rose to “reckless or willful misconduct, or gross negligence.” Further, there may be questions as to how to apply this statute to guardians who were first appointed under the Probate Code when it promised guardians complete immunity. What is certain is that, after Aug. 1, 2024, Minnesota guardians should consider how this abolishment of statutory immunity might impact their decisions and conduct. Similarly, people who are subject to a guardianship—or their successor guardians—may consider whether they have been damaged by a guardian’s “reckless or willful misconduct, or gross negligence.”

We Can Help

Maslon’s Trust & Estate Litigation and Estate Planning attorneys welcome your questions about guardianships and legal precedent in this often complex area of law.

June 10:

• Maslon Board Member and Estate Planning Partner Susan Link moderates the "2024 Probate Panel: Reviewing and Resolving the Latest Issues in Probate Administration," with Paralegal Tina M. Johnson serving on the panel.
• Maslon Board Member and Partner Julian Zebot, chair of Maslon's Trust & Estate Litigation Group, co-presents a session titled, "What to Do with a Bad Personal Representative or Trustee: Assessing the Tools in Your Legal Toolbox."

June 11:

• Trust & Estate Group Chair Michael Sampson moderates "2024 Large Estates Panel: Planning in Uncertain Economic Times."

For more information or to register, go to Minnesota CLE: 2024 Probate and Trust Law Section Conference.

Mike focuses on high-end estate and tax planning, estate and trust administration, charitable planning, and business succession planning. He helps his clients focus on what it is they want to accomplish with their wealth. After assisting his clients in identifying their specific wealth planning goals, he works with them and their other professional advisors to develop and implement wealth transfer strategies that are consistent not only with their goals, but also with their cash flow needs and tolerance for risk.

Susan, a member of the firm's board of directors, practices in the areas of estate planning, probate, and trust administration. She works closely with families to plan the disposition of their assets, both during lifetime and at death, and to accomplish the optimal estate and gift tax planning for clients through wills, trusts, and other instruments. Susan routinely drafts estate plans that include estate tax and generation-skipping tax planning, in addition to drafting and implementing irrevocable trusts, charitable trusts, qualified personal residence trusts, minors' trusts, antenuptial agreements, and postnuptial agreements. She is regularly involved in the analysis and issues of lifetime gifting programs, estate tax planning, and generation-skipping issues.

Julian, a board member and chair of Maslon's Trust & Estate Litigation Group, focuses his legal practice on probate, fiduciary, and trust litigation as well as business and commercial litigation. His probate, fiduciary, and trust litigation practice has involved many different types of contested estate, trust, probate, and elder law matters, including will/trust contests (including claims of undue influence and diminished capacity), construction/interpretation disputes, accounting actions, breach of fiduciary duty claims, fiduciary removal actions, trust instruction proceedings, financial elder abuse claims, and creditor claims against estates. He has also developed a niche practice representing and counseling parties involved in complicated multijurisdictional trust litigation, often involving parallel lawsuits in different states, and has familiarity with associated trust situs, venue, and jurisdictional issues.

Tina is a paralegal with more than two decades of experience managing probate and trust administrations, maintaining trust account ledgers and annual trust accountings, and preparing fiduciary income tax, gift tax, and estate tax returns. She also supports attorneys with clients' long term care planning needs and annual accountings for guardianships, conservatorships, and special/supplemental needs trusts.

Nate and Yemaya will present "Probate Property vs. Non-Probate Assets." Nate will team up with Carly for "Probate Disputes and Litigation."

For more information or to register, go to NBI: Minnesota Probate Process from Start to Finish.

Nate, a litigation attorney, helps fiduciaries and individuals navigate often complex probate and estate litigation matters. He also works with a broad spectrum of organizations in business, commercial, and municipal litigation. Nate is dedicated to helping clients through all stages of the process, working closely with them to achieve their goals.

Carly, also a member of the Litigation Group, assists clients across a broad range of general commercial disputes, with a particular emphasis on trust and estate litigation, including guardianships/conservatorships, contested estates, probate, and elder law matters. She also advises clients on contract matters and real estate disputes.

Yemaya is an attorney in Maslon's Estate Planning Group who works with clients to help them achieve their wealth management and legacy goals. She understands the importance of listening carefully to clients’ concerns regarding their financial future, business succession, and family needs.

If you are interested in attending, please contact Emily Lawson at emily.lawson@maslon.com or 612.672.8253.

Julian focuses his legal practice on probate, fiduciary, and trust litigation as well as business and commercial litigation. He has counseled and represented individual and business clients in both federal and state courts as well as arbitration proceedings, and he has handled matters for clients at all stages of the litigation process, including mediation, trials, and appeals.

Nate helps fiduciaries and individuals navigate often complex probate and estate litigation matters. He also works with a broad spectrum of organizations in business, commercial, and municipal litigation. Nate is dedicated to helping clients through all stages of the process, working closely with them to achieve their goals.

Yemaya is an attorney in Maslon's Estate Planning Group who works with clients to help them achieve their wealth management and legacy goals. She understands the importance of listening carefully to clients’ concerns regarding their financial future, business succession, and family needs.

The event takes place May 8-11, 2024, in Washington, D.C. For more information, go to: 36th Annual ABA RPTE National CLE Conference.

Julian focuses his legal practice on probate, fiduciary, and trust litigation as well as business and commercial litigation. He has counseled and represented individual and business clients in both federal and state courts as well as arbitration proceedings, and he has handled matters for clients at all stages of the litigation process, including mediation, trials, and appeals.

Julian also serves as vice chair of the American Bar Association Real Property, Trust and Estate Law Section Litigation, Ethics and Malpractice Group; and as immediate past president of the National Academy of Elder Law Attorneys–Minnesota Chapter. He was named a fellow in American College of Trust and Estate Counsel in 2020 and serves on several committees for the organization. In addition, Julian frequently writes and speaks on topics relating to probate, fiduciary, and trust litigation, fiduciary risk management, and professional ethics.

We published a legal alert on Feb. 28, 2023, discussing Swanson v. Wolf, 986 N.W.2d 217 (Minn. App. 2023). To summarize the issue, the Minnesota Trust Code provides for two types of jurisdiction in trust proceedings: 1) in rem jurisdiction, which refers to the court's authority over the trust's assets, and 2) in personam jurisdiction, which refers to the court's authority over a person interested in the trust.

As provided for in Minn. Stat. § 501C.0203, either form of jurisdiction can be invoked by the specific manner in which notice of an initial petition is provided. An in rem petition is served by publishing in a paper of record, putting the world on notice of the proceeding. An in personam petition is served by personally serving the people interested in the trust. A separate statute, Minn. Stat. § 501C.0202, enumerates the courts' powers in trust proceedings. These powers include the ability to remove a trustee. In Swanson, the Court of Appeals determined that because the ability to remove a trustee was a power "binding on individuals," then the court must have in personam jurisdiction over the trustee to exercise that power.

As we noted last year, Swanson called into question which jurisdiction was necessary for the other items of judicial relief under section 501C.0202 of the Minnesota Trust Code. For example, if a court needed in personam jurisdiction to remove a trustee, does a court need in personam jurisdiction to appoint a new trustee? If a trustee sold a trust's real property, which jurisdiction is necessary for the court to approve that action? The asset would be part of the res of the trust but the court would be asked to confirm an individual's action regarding that asset. Is that in rem? Is that in personam?

By amending the Minnesota Trust Code, lawmakers have answered those questions. Specifically, section 501C.0202 now makes clear that the enumerated powers of a court may be exercised "whether filed by petition under the district court's in rem or in personam jurisdiction …." The legislation also clarifies that an order issued by a court with in rem jurisdiction is binding "upon the trust estate and all interested persons …."

In other words, lawmakers have clarified that a court's powers in a trust proceeding are not limited by whether the court operates under in rem or in personam jurisdiction. With this clarification, the only consideration between in rem or in personam jurisdiction is how the filing party wishes to serve its petition and who will be bound by the court's order.

We Can Help

Maslon's Trust & Estate Litigation and Estate Planning attorneys welcome your questions about trusts, trustees, and legal precedent in this often complex area of law.

In "Approach the Bench: Judges’ Tips for Trust & Estate Litigators," Carly will engage the judges on common mistakes they see litigators make, what lawyers should tell their clients about going to court, and more. Serving as panelists are Judge Julia Dayton-Klein of the Fourth Judicial District (Hennepin County), Judge Shawn Moynihan of the First Judicial District (Dakota County), and Referee Joel Olson of the Second Judicial District (Ramsey County).

Maslon Partner Evan Nelson co-chairs the Trust and Estate Litigation and Dispute Resolution Committee.

For more information or to register, go to MSBA Judges Panel.

Carly is a litigation attorney focusing on will/trust contests, guardianship and conservatorship proceedings, as well as construction, real estate, and contract disputes. She represents both institutions and individuals serving as trustees, personal representatives, or attorneys-in-fact for clients and loved ones.

Feb. 6: Susan and Matt present "Opening an Estate, Inventory, and Disclaimers," an in-depth look at the important considerations of opening an estate, including choosing formal vs informal proceedings, the role of the personal representative, inventory, and more.

Feb. 16: Julian co-presents "Estate Litigation and Appeals," which covers disputes concerning the construction or validity of a testamentary instrument, disputes involving surviving spouse’s right to an elective share, resolving contested matters through settlement, litigation by and against a personal representative, and alternative dispute resolution in contested matters.

For information or to register, go to Minnesota CLE: 2024 Probate A to Z.

Susan, a member of the firm's board of directors, practices in the areas of estate planning, probate, and trust administration. She works closely with families to plan the disposition of their assets, both during lifetime and at death, and to accomplish the optimal estate and gift tax planning for clients through wills, trusts, and other instruments. Susan routinely drafts estate plans that include estate tax and generation-skipping tax planning, in addition to drafting and implementing irrevocable trusts, charitable trusts, qualified personal residence trusts, minors' trusts, antenuptial agreements, and postnuptial agreements. She is regularly involved in the analysis and issues of lifetime gifting programs, estate tax planning, and generation-skipping issues.

Matt provides dedicated counsel in estate planning, trust and estate administration, guardianship and conservatorship law, and estate and trust litigation. His experience with complex estate planning law and his social work background make him uniquely equipped to navigate sensitive family dynamics while preserving his clients' legacy. He enjoys getting to know his clients and learning what goals and values are most important to them. Matt frequently writes and presents on estate planning issues. His areas of expertise include mitigating risks in estate planning and the ethical issues attorneys face when working with clients with mental illness or diminished capacity.

Julian, chair of Maslon's Trust & Estate Litigation Group and member of the board of directors, focuses his legal practice on probate, fiduciary, and trust litigation as well as business and commercial litigation. His probate, fiduciary, and trust litigation practice has involved many different types of contested estate, trust, probate, and elder law matters, including will/trust contests (including claims of undue influence and diminished capacity), construction/interpretation disputes, accounting actions, breach of fiduciary duty claims, fiduciary removal actions, trust instruction proceedings, financial elder abuse claims, and creditor claims against estates. He has also developed a niche practice representing and counseling parties involved in complicated multijurisdictional trust litigation, often involving parallel lawsuits in different states, and has familiarity with associated trust situs, venue, and jurisdictional issues.

Maslon Partner Michael Sampson, chair of the Estate Planning Group, will present two sessions on Nov. 14 as part of Minnesota CLE's Hot Topics in Advanced Estate Administration seminar. In "Post-Mortem Planning," Mike will discuss the most important decisions to be made after the decedent's death. His second session focuses on estate and income tax issues. Attorneys Evan Nelson and Carly Johnson present "Litigation and Post-Trial Practice," in which they discuss key issues related to estate litigation and appellate issues.

For more information or to register, go to Minnesota CLE: Hot Topics in Advanced Estate Administration.

Mike focuses on high-end estate and tax planning, estate and trust administration, charitable planning, and business succession planning. He helps his clients focus on what it is they really want to accomplish with their wealth. After assisting his clients in identifying their specific wealth planning goals, he works with them and their other professional advisors to develop and implement wealth transfer strategies that are consistent not only with their goals, but also with their cash flow needs and tolerance for risk.

Evan describes himself as a “death and dirt” lawyer. He represents clients in trusts and estate disputes, which often come to a head after a family member has died, and in real estate litigation, where clients dispute who owns and controls access to "dirt." Because the two often intersect, as people will gift land (or attempt to do so) via their wills or trusts, Evan’s distinct capabilities prove particularly beneficial.

Carly is a litigation attorney focusing on will/trust contests, guardianship and conservatorship proceedings, as well as construction, real estate, and contract disputes. She represents both institutions and individuals serving as trustees, personal representatives, or attorneys-in-fact for clients and loved ones.

The ACTEC Fall Conference takes place from Oct. 26-29.

Julian focuses his legal practice on probate, fiduciary, and trust litigation as well as business and commercial litigation. He has counseled and represented individual and business clients in both federal and state courts as well as arbitration proceedings, and he has handled matters for clients at all stages of the litigation process, including mediation, trials, and appeals.

Julian was named a fellow in ACTEC in 2020 and serves on several committees for the organization. He also serves as vice chair of the American Bar Association Real Property, Trust and Estate Law Section Litigation, Ethics and Malpractice Group; and as president of the National Academy of Elder Law Attorneys–Minnesota Chapter. In addition, Julian frequently writes and speaks on topics relating to probate, fiduciary, and trust litigation, fiduciary risk management, and professional ethics.

The event is free and open to the public. For more information or to register, go to Mental Health Education Conference.

Rachel is a partner in the Estate Planning Group specializing in comprehensive estate planning, probate and trust administration, guardianships and conservatorships, and business and farm succession planning. Her work across all is enhanced by extensive prior experience in business formation, real estate, and agriculture law.

Carly is a litigation attorney focusing on will/trust contests, guardianship and conservatorship proceedings, as well as construction, real estate, and contract disputes. She represents both institutions and individuals serving as trustees, personal representatives, or attorneys-in-fact for clients and loved ones.

Yemaya is an estate planning attorney who works with clients to help them achieve their wealth management and legacy goals. Her work ranges from advising clients about estate planning strategies they can implement during their lives to guiding clients through the probate and trust administration processes after the loss of a loved one.

For more information or to register, go to: Minnesota CLE: The Estate Planning, Probate & Trust Law 50.

Evan describes himself as a "death and dirt" lawyer. He represents clients in trusts and estate disputes, which often come to a head after a family member has died, and in real estate litigation, where clients dispute who owns and controls access to "dirt." Because the two often intersect, as people will gift land (or attempt to do so) via their wills or trusts, Evan's capabilities prove particularly beneficial. Evan also maintains an active pro bono practice, with significant experience in environmental, administrative, and Government Data Practices Act litigation.

Carly assists clients across a broad range of general commercial litigation matters, including trust and estate, construction, real estate, contract, and employment disputes. Her practice is informed by her active civic engagement and service, which includes her election to the Oak Park Heights City Council shortly after earning her undergraduate degree in biology from St. Thomas, and her re-election in 2022.

Oher alleges in the petition that the Tuohys, who took him into their home when he was in high school, repeatedly stated that they "loved him and that they intended to legally adopt him." Believing these statements and trusting the Tuohys, he thought the legal paperwork they presented to him shortly after he moved in was for adoption. In reality, it was a conservatorship petition. Oher was 18 at the time and had no diagnosed physical or psychological disabilities. The recent petition alleges that the Tuohys sought the conservatorship to "gain financial advantages for themselves" and their foundation.

Oher's story raises many questions about conservatorships and guardianships. The laws on these matters vary from state to state, but the following are some basics:

What Is a Guardianship/Conservatorship?

Typically, a person seeks both a guardianship and conservatorship for a loved one at the same time. However, a person can obtain a guardianship without a conservatorship and vice versa depending on the individual's care needs and capacity.

A guardianship is ordered if a court determines that a person is incapable of making personal care decisions for themselves and it is the least restrictive means to help that individual (e.g., they do not have a healthcare directive).

A conservatorship, on the other hand, is related to finances. A court orders a conservatorship when the individual is unable to make financial decisions and there is not another less-restrictive alternative, such as a power of attorney, living trust, technological assistance, etc. Usually, guardianships and conservatorships are reserved for people who are struggling with dementia, in a coma, or diagnosed with other serious medical or psychological impairments.

Once one becomes a ward, or "protected person," under guardianship or conservatorship, they lose a number of basic legal rights. A protected person under conservatorship loses the legal right to determine how to spend their money, enter into contracts, buy a home, make investments, pay bills, or draft a will. To safeguard the protected person and limit the potential for abuse, guardians must file at least annual well-being reports. Similarly, conservatorships are subject to court supervision, and the conservator must seek court approval for certain transactions.

How Does Someone Become a Guardian or Conservator in Minnesota?

To establish a guardianship or conservatorship in Minnesota, a person must file a petition with the probate court in the county in which the proposed protected person resides. The petitioner must request that a specific person be appointed as a guardian and/or conservator, whether that be themselves, another family member, an attorney, or a professional agency. The petitioner must also request the powers they would like the court to grant to the guardian and/or conservator, whether those be comprehensive or more limited.

A conservatorship petition must describe the "present general mental condition" supporting an allegation that the proposed protected person is "unable to manage property and business affairs because of an impairment in the ability to receive and evaluate information or make decisions, even with the use of appropriate technological assistance." The petition should also explain whether the proposed ward "has demonstrated behavioral deficits evidencing an inability to manage [their] estate," and which less restrictive measures, if any, have been attempted and considered but found to be insufficient to meet the person's needs.

The law is similar in Tennessee, which, given the allegations in Oher's petition, raises questions about why the judge granted the conservatorship.

Can You Terminate a Conservatorship?

Media reports say the Tuohys have agreed to an end to Oher's conservatorship. But typically, once someone is under conservatorship, it is very difficult to regain lost rights.

In Minnesota, a conservatorship can be terminated if a court finds that the person no longer needs the assistance or protection of a conservator.

How Can You Avoid a Guardianship or Conservatorship?

As noted above, a guardianship or conservatorship is designed to be a last resort, ordered only if it's the least restrictive option—meaning there are no other alternatives. Conservatorships are time consuming and can be emotionally draining for family members and the protected person. In addition, court proceedings in certain states, including Minnesota, are public records, exposing a protected person who values independence or privacy to potential embarrassment.

To avoid a guardianship and/or conservatorship, it is best for families to engage in proactive estate planning. That includes executing estate planning documents, particularly powers of attorney and healthcare directives, that clearly express who they would like to take care of them if they are unable to make decisions for themselves.

We Can Help

Maslon attorneys can assist your family with your guardianship and conservatorship needs. Further, to avoid guardianships and conservatorships, Maslon recommends talking with one of our trust and estate attorneys to help prepare estate planning documents that address the risk of future incapacity.

Evan describes himself as a “death and dirt” lawyer. He represents clients in trusts and estate disputes, which often come to a head after a family member has died, and in real estate litigation, where clients dispute who owns and controls access to "dirt." Because the two often intersect, as people will gift land (or attempt to do so) via their wills or trusts, Evan’s distinct capabilities prove particularly beneficial.

Evan also maintains an active pro bono practice, with significant experience in environmental, administrative, and Government Data Practices Act litigation.

Julian previously served as the co-chair of the ABA's Ethics and Malpractice Committee within the Litigation, Ethics and Malpractice Group.

He focuses his legal practice on probate, fiduciary, and trust litigation as well as business and commercial litigation. He has counseled and represented individual and business clients in both federal and state courts as well as arbitration proceedings, and he has handled matters for clients at all stages of the litigation process, including mediation, trials, and appeals.

Among his many other leadership roles in the field, Julian is a fellow and member of several committees of the American College of Trust and Estate Counsel (ACTEC); he also serves as president of the National Academy of Elder Law Attorneys–Minnesota Chapter. He recently completed a three-year term on the Minnesota Lawyers Professional Responsibility Board. In addition, Julian frequently writes and speaks on topics relating to probate, fiduciary, and trust litigation, fiduciary risk management, and professional ethics.

Only 11 other Minnesota private wealth law attorneys achieved the Band 1 ranking.

Susan serves on the firm's board of directors. Michael leads Maslon's Estate Planning Group.

The Chambers guide ranks the top lawyers and law firms for international private wealth law based on extensive interviews and research to assess technical legal ability, client service, depth of team, commercial vision and business understanding, diligence, value, and other qualities most valued by clients.

To view Maslon's full Chambers High Net Worth rankings, go to: 2023 Chambers High Net Worth.

About Chambers and Partners
Since 1969, London-based Chambers and Partners has published world-famous guides to the legal profession. A team of over 200 researchers conducts continuous, in-depth telephone research for all guides.

At First, a Mystery

Originally, Aretha Franklin’s family thought she had no will when she died in 2018, meaning her property would have been divided equally among her four sons. Months later, they found two handwritten wills: one inside a locked cabinet dated 2010 and the four-page couch-cushion will that was drafted in 2014. Neither was prepared with the assistance of an attorney nor included the signatures of attesting witnesses, although the 2010 will was notarized. A jury decided on July 11 that the later, couch-cushion will was in fact the valid document to control distribution of Aretha Franklin's $80 million dollar estate.

The 2014 will that the jury decided would control the estate gave Franklin’s $1.1 million home to her son, Kecalf, and his grandchildren, and did not include a provision from the earlier will requiring Kecalf and another son, Edward, to take business classes or receive a degree to inherit from the estate.[1]

Minnesota Law on Handwritten Wills

Many states around the country, including Minnesota and Franklin’s home state of Michigan, recognize handwritten wills that comply with state requirements.[2] Under Minnesota law, a will must be signed by the will-maker and also signed by two people who witnessed the will-maker’s signing.[3] Other states, such as Michigan, do not always require witnesses.

Even if Minnesota courts do not normally recognize wills that were not witnessed, they will do so if the will is valid in a state that permitted them at the time the will was drafted.[4] This situation might apply to someone who was staying part of the year in their Minnesota cabin or living in Minnesota at the time of their death but drafted a valid will elsewhere.

Handwritten or typed, however, both of Franklin’s wills would likely have been considered invalid in Minnesota, as neither were witnessed. As a result, distribution of the singer's estate would be entirely controlled by Minnesota inheritance laws, and each of her sons would inherit equally.

The Battle of the Wills

If both wills had been properly executed, how would a Minnesota court have determined whether a later will merely changes an earlier will or, instead, completely revokes and replaces it?

In Minnesota, absent an explicit statement, a new will is presumed to fully replace and revoke a previous will if it distributes all of the will-maker’s assets.[5] On the other hand, a later will is presumed to only supplement the earlier will if it does not include (and distribute) all of the will-maker’s property.[6]

Importantly, however, these presumptions may be overcome by clear and convincing evidence that the will-maker intended something else.[7] Therefore, in Minnesota, in the absence of clear and convincing evidence showing otherwise, Aretha Franklin’s couch-cushion will would completely replace the 2010 will, because it disposed of the entirety of her estate.

What You Can Do

The legal dispute over Aretha Franklin’s wills provides valuable lessons. Minnesota law requires that wills be drafted with certain formalities—including two witnesses, a signature of the will-maker, and the date. If you draft a new will intending to replace an old will, that intention should be stated. It's wise to be as clear as possible about all of your intentions in the document.

Taxes are another important consideration, especially with sizeable estates like Aretha Franklin’s. Had she consulted an attorney, her estate might have benefited from tax planning. Parents of children who are eligible for government benefits should also obtain advice on how to supplement their child’s benefits while not affecting the child's eligibility.

Finally, don't put your will under a couch cushion. It's best to keep it in a fireproof, waterproof safe in your home, and make sure your loved ones know where and how to access the document.

We Can Help

Don’t leave your estate planning to chance. Maslon’s estate planning attorneys use their extensive experience and expertise to help clients ensure that all of the legal formalities of a will are met.

If your family is in a dispute over the validity of a family member’s estate planning, our trusted team of trust & estate litigation attorneys can walk you through the legal process.

Please contact us for assistance.

Summer associate Dany Berbari contributed to this article.

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[1] https://www.washingtonpost.com/lifestyle/2023/07/11/aretha-franklin-will-dispute/; https://apnews.com/article/aretha-franklin-will-dispute-d7aba286b05ea0d0e6318ce6abc887d5

[2] Minn. Stat. § 524.2-502

[3] Minn. Stat. § 524.2-502

[4] Minn. Stat. § 524.2-506

[5] Minn. Stat. § 524.2-507 (c)

[6] Minn. Stat. § 524.2-507 (d)

[7] Minn. Stat. § 524.2-507 (c)-(d)

The ruling reversed a Minnesota Court of Appeals decision that had been troubling Minnesota estate planning attorneys since it was issued in May 2022. In the Matter of the Estate of Mathew Joseph Tomczik, the Court of Appeals determined that if a person names their former spouse in a will, an alternate residuary gift in that will to "my spouse's heirs" remains in place in the event of a divorce.[1]

In its recent ruling, the Minnesota Supreme Court determined that the Court of Appeals' decision could lead to outcomes that many divorced couples would not intend. And while the new ruling provides a needed clarification in the law, it also serves as a reminder that people should consider updating their estate plans, especially after key life events such as divorce.

The Challenges Posed by In re Tomczik

In this Minnesota case, Mathew Tomczik and his then-wife, Sara Tomczik, drafted wills that were mirror images of each other. In Mathew's will, he named "Sara Tomczik" as his wife. Mathew's will included an alternate residuary provision giving half to his heirs and half to "my wife's." Seven years after these wills were drafted, Mathew and Sara divorced. Mathew died two years after the divorce without ever revising his will. Neither Mathew nor Sara had children.

Under the Minnesota Uniform Probate Code, divorce revokes a gift made to a former spouse in a will that was made before the divorce. Therefore, Sara could get nothing. And because neither Mathew nor Sara had any children, the alternate residuary provision—half to his heirs and half to his wife's—kicked in.

Upon Mathew's death, his brother, who was named executor of the estate, assumed that the residuary provision's gift of half to "my wife's heirs-at-law" was no longer valid because Mathew did not have a spouse when he died. However, when the brother petitioned a court to probate Mathew's estate, claiming Mathew's siblings as the only beneficiaries of Mathew's will, an objection came from an unlikely source—Mathew's former parents-in-law, Calvin and Patricia Headley.

While the Headleys agreed that Mathew's ex-wife, Sara, could not receive a gift under the will, they still argued that they were beneficiaries under the alternate residuary provision because they were Sara's heirs-at-law and "my wife" was defined as "Sara Tomczik." They argued that there was no provision in the law that addressed divorce's effect on gifts to a former spouse's family, nor any reason to assume that Mathew intended for the divorce to invalidate the gift to Sara's heirs.

The Minnesota Supreme Court's Decision

The Supreme Court held that divorce may invalidate a gift to a former spouse's family—depending on the language in the will. First, the court affirmed that a gift to someone described by their familial relationship and also named is not made invalid if there is no longer a familial relationship due to a divorce. For instance, the court recognized that, in a previous Minnesota case, a gift to "my stepdaughter Dawn" was not rendered invalid by divorce; even if Dawn was no longer a stepdaughter as a result of the divorce, Dawn was still identified in the will.

The court further noted that "my wife's heirs-at-law," were not specifically named in the will. The court reasoned that, since Mathew had no wife at the time of his death, the class of people who would be "my wife's heirs-at-law" did not exist.

Further, the Supreme Court held that it is a reasonable inference—a reasonable assumption—that any person who divorces another would no longer want to include a gift to their former spouse's heirs, because any familial relationship between that person and their ex-spouse's heirs was dissolved by the divorce. Therefore, the court inferred that Mathew intended for the gift of his alternative residuary provision to be for the benefit of people defined by their familial relationship to him, not his ex-wife.

We Can Help

Although In re Tomczik clarified how estate plans should be interpreted following a divorce in a way that likely aligns with most people's wishes, it is always best to check and periodically update your estate plans. This is especially important after major life events such as divorce, the birth of a child, a child reaching the age of 18, or a major shift in your financial situation.

Maslon's estate planning attorneys follow developments in the law and use their extensive knowledge and expertise to navigate complex estate planning issues for their clients. Our attorneys can offer guidance on how to best protect your assets and ensure your wishes for your estate are properly carried out upon your death. Please contact us for assistance.
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          [1] It is common for estate planning attorneys to draft "alternate residuary provisions" for married couples that take effect in the event that all of the beneficiaries of the will die before the testator—the person making the will—and cannot receive their gifts. These provisions generally state that the assets of a married testator should be split equally between their "heirs-at-law" and their spouse's heirs-at-law.
              The term "heirs-at-law" or simply “heirs” refers to anyone who has a legal right under state law to inherit a person's assets when that person dies without a will, typically children or grandchildren, but potentially parents, siblings, etc. The idea of an alternate residuary provision is to keep an estate's gifts in a person's family when circumstances change dramatically after the will is drafted.

The presentation is part of Minnesota CLE's Evidence A to Z webcast series and is based on the attorneys' chapter in the forthcoming MN Courtroom Evidence Deskbook on social media evidence, to be published later this year.

For more information or to register, go to: Minnesota CLE: Minnesota Rules of Evidence: Social Media Evidence.

Jevon is an experienced trial lawyer who regularly handles appeals in the Eighth Circuit and Minnesota appellate courts. He is a member of the Minnesota Supreme Court Advisory Committees on the Rules of Evidence and the Rules of Civil Procedure, and is an associate fellow of the Construction Lawyers Society of America. Jevon also writes and presents on issues ranging from trial evidence to construction and insurance coverage law, and he is active as a speaker on the rules governing federal and Minnesota state courts.

Peter is a business litigator focused on resolving construction and insurance coverage disputes. He provides practical advice to help his clients navigate all phases of their construction projects, from contract negotiations to asserting or defending claims. In addition, Peter regularly advises insurance policyholders regarding their rights and asserts those rights on their behalf. He also serves on the Minnesota Supreme Court Advisory Committee on General Rules of Practice.

Nate helps fiduciaries and individuals navigate often complex probate and estate litigation matters. He also works with a broad spectrum of organizations in business, commercial, and municipal litigation. Nate is dedicated to helping clients through all stages of the process, working closely with them to achieve their goals.

June 12:

Maslon Board Member and Estate Planning Partner Susan Link moderates the "2023 Probate Panel: Reviewing and Resolving the Latest Issues in Probate Administration."

Maslon Board Member and Partner Julian Zebot, chair of Maslon's Trust & Estate Litigation Group, and litigation attorney Evan Nelson present a session titled, "Do I Have to Make a Distribution to the Beneficiary Who’s Suing Me? Trust and Estate Administration During Litigation."

June 13:

Partner Rachel Dahl and attorney Yemaya Hanna co-present "Your First Probate: How to Manage Important Timelines and Deadlines."

Trust & Estate Group Chair Michael Sampson moderates "2023 Large Estates Panel: Planning in Uncertain Economic Times."

Partner Bradley Pederson co-presents "The New Corporate Transparency Act: Disclosure Obligations for Your Clients and You."

For more information or to register, go to Minnesota CLE: 2023 Probate and Trust Law Section Conference.

Julian will join other panelists for a session titled “Arbitration of Trust and Estate Disputes: Should It Be in Your Toolbox?” The panel will address the basics of arbitration, the pros and cons of arbitrating trust and estate disputes, and what can and cannot be arbitrated. It will also offer real world experiences of those who have drafted and arbitrated trust and estate disputes.

For more information, go to American Bar Association: 35th Annual RPTE National CLE Conference.

Julian focuses his legal practice on probate, fiduciary, and trust litigation as well as business and commercial litigation. He has counseled and represented individual and business clients in both federal and state courts as well as arbitration proceedings, and he has handled matters for clients at all stages of the litigation process, including mediation, trials, and appeals.

Julian serves as co-chair of the Ethics and Malpractice Committee of the American Bar Association's Real Property, Trust and Estate Law Section. He is also a fellow in the American College of Trust and Estate Counsel (ACTEC), and he frequently writes and speaks on topics relating to probate, fiduciary, and trust litigation, fiduciary risk management, and professional ethics.

For information or to register, go to Minnesota CLE: 2023 ABCs of Probate Practice in Minnesota.

Susan practices in the areas of estate planning, probate, and trust administration. She works closely with families to plan the disposition of their assets, both during lifetime and at death, and to accomplish the optimal estate and gift tax planning for clients through wills, trusts, and other instruments. Susan routinely drafts estate plans that include estate tax and generation-skipping tax planning, in addition to drafting and implementing irrevocable trusts, charitable trusts, qualified personal residence trusts, minors' trusts, antenuptial agreements, and postnuptial agreements. She is regularly involved in the analysis and issues of lifetime gifting programs, estate tax planning, and generation-skipping issues.

Rachel is an Estate Planning Group partner specializing in comprehensive estate planning, probate and trust administration, guardianships and conservatorships, and business and farm succession planning. Informed by her childhood in a rural environment, Rachel works with individuals, farm families, and business owners to design estate and succession plans that meet their individual needs and goals, while keeping the farm operation, business, and family structure in mind.

Susan, Rachel, and Morgan co-author Chapter 2: Opening an Estate, Inventory, and Disclaimers. Michael co-authors Chapter 5: Taxation Issues. And Julian co-authors Chapter 9: Professional Responsibility and Chapter 11: Review of Recommended Orders, Post-Trial Motions, and Appeals in Estate Litigation.

The Deskbook comes with a companion eFormbook that includes more than 260 downloadable and editable probate forms.

For more information or to order, go to: Minnesota CLE – Minnesota Estate Administration Deskbook, 6th Edition.

Susan, a Maslon board member, has edited the Estate Administration Deskbook for two decades. She practices in the areas of estate planning, probate, and trust administration, working closely with families to plan the disposition of their assets, both during lifetime and at death, and to accomplish the optimal estate and gift tax planning for clients through wills, trusts, and other instruments. Susan routinely drafts estate plans that include estate tax and generation-skipping tax planning, in addition to drafting and implementing irrevocable trusts, charitable trusts, qualified personal residence trusts, minors' trusts, antenuptial agreements, and postnuptial agreements. She is recognized as a Notable Practitioner in Minnesota for Private Wealth Law in Chambers High Net Worth (HNW) guide (2018-2022) and is a member of The American College of Trust and Estate Counsel.

Michael, chair of Maslon’s Estate Planning Group, focuses on high-end estate and tax planning, estate and trust administration, charitable planning, and business succession planning. He helps his clients focus on what it is they really want to accomplish with their wealth. After assisting his clients in identifying their specific wealth planning goals, Michael works with them and their other professional advisors to develop and implement wealth transfer strategies that are consistent not only with their goals, but also with their cash flow needs and tolerance for risk. Michael is a fellow of The American College of Trust and Estate Counsel and has also been recognized as a Notable Practitioner in Minnesota for Private Wealth Law in the 2018-2022 editions of the Chambers High Net Worth (HNW) guide.

Julian, a Maslon board member, chair of Maslon’s Trust & Estate Litigation Practice Group, and a fellow in The American College of Trust and Estate Counsel, advises clients on probate, fiduciary, and trust litigation as well as business and commercial litigation. His practice has involved many different types of contested estate, trust, probate, and elder law matters, including will/trust contests (including claims of undue influence and diminished capacity), construction/interpretation disputes, accounting actions, breach of fiduciary duty claims, fiduciary removal actions, trust instruction proceedings, financial elder abuse claims, and creditor claims against estates.

Rachel specializes in comprehensive estate planning, probate and trust administration, guardianships and conservatorships, and business and farm succession planning. Informed by her childhood in a rural environment, Rachel works with individuals, farm families, and business owners to design estate and succession plans that meet their individual needs and goals, while keeping the farm operation, business, and family structure in mind.