BY
REBECCA L. MANN
the courts may make an equitable
division of the property belonging to
either or both, whether the title to
such property is in the name of the
husband or the wife. In making such
division of the property, the court
shall have regard for equity and the
circumstances of the parties.
Prenuptial Agreement
Set it aside as
“Non-marital” Property
Have it Awarded to You in the
Property Settlement
-Husband’s nonmarital property
-Wife’s non-marital
property
-Marital property
Inherited and gifted property is
not automatically excluded from
the marital property
Factors To Consider
1. Duration of Marriage
2. Value of the property
owned by the parties
3. Ages of the parties
4. Health of the parties
5. Competency of the
parties to earn a living
6. Contribution of each
party to the accumulation
of the property
7. Income producing
capacity of the parties’
assets.
So the ranch is in the marital
property pile. Now what? The
Court will make an “equitable”
division of the property.
Factors To Consider
1. Duration of Marriage
2. Value of the property
owned by the parties
3. Ages of the parties
4. Health of the parties
5. Competency of the
parties to earn a living
6. Contribution of each
party to the accumulation
of the property
7. Income producing
capacity of the parties’
assets.
Courts are very reluctant to
Require a lump sum payment that
Divide
up
the
Ranch
necessitates a sale of the ranch.
HOWEVER
An equitable property division is
paramount to keeping the ranch intact.
Usually
with
a right
first
refusal
Award
wife
some
landofbut
require
her
Solves
Have to
cash
agree
flow
and
problem
be ablewith
to work
buy out
together
option
and/or
anitoption
tohusband.
purchase
to lease
back to
HERS
HIS
m
Rebecca L. Mann
Ready, Aim…Trust!
Benefits of “Gun Trusts”
Target Overview
• What’s a “Gun Trust”
• How is this applicable to you?
– Own a NFA Firearm (Title II or “Class 3” weapons) for
Personal use
– Family or group use
– Collectors
– Antiques
– Investment
– Estate planning
– You might already own a NFA Firearm
– Know your opposition
The National Firearms Act, et al
• Special rules for certain “Firearms”
– Weapons not illegal to own, just prohibitively-regulated
– GCA of 1968; Firearm Owners’ Protection Act of 1986
– Individual states can be more restrictive. All Title II
firearms are legal in South Dakota.
• Penalties for Violations
– Steep penalties for improper possession, transfer,
inheritance, use…
• Ex: family member, State lines
– $250,000
– 10 years
What is a NFA “Firearm?”
Short Barreled Shotguns (“SBS”)
|------- < 18 Inches --------|
Not just for robbin’
stagecoaches.
Example: protecting
the chickens
What is a NFA Firearm?
Short Barreled Rifles (“SBR”) < 16 inches
What is a NFA Firearm?
Machinegun
What is a NFA Firearm?
Silencers
What is a NFA Firearm?
Any Other Weapon (“AOW”)
What is a NFA Firearm?
Destructive device
Includes the following:
Flare Gun + Bean Bag
O.K.
Explosive devices.
Large caliber weapons.
What is a NFA Firearm?
Unserviceable firearm.
An unserviceable firearm is a
firearm that is incapable of discharging a shot by the action of an explosive and
is incapable of being readily restored to a firing condition.
Still a NFA
Firearm.
Antique Firearm.
Firearms defined by
the NFA as “antique firearms” are
not subject to any controls
under the NFA. Must meet both age
(1898) and ammunition availability standards
of the definition.
Curios or relics. Curios or relics are firearms that are of special
interest to collectors.
Still a NFA Firearm.
Owning NFA Weaponry Individually
• Basic requirements:
–
–
–
–
Live in a state where Class III weapons are legal
US citizen
21 years old
Never been convicted of a Felony or Domestic
Violence
– Never been dishonorably discharged from the military
– Never been adjudicated mentally defective
• Plus…
Owning NFA Weaponry Individually
• Local Requirements
– First: “Chief Law Enforcement Officer” (CLEO) sign-off
• Federal Requirements
– Bureau of Alcohol, Tobacco, Firearms and Explosives –
“ATF”
– Form 1 or Form 4
– Finger prints
– Personal photos
– Transfer tax
• Only individual can possess firearm – VERY
restrictive
• Estate Planning
Owning NFA Weaponry in a Trust
•
•
•
•
No Signature of local CLEO needed
No fingerprints needed
No personal photograph needed
In the language of the ATF:
– “Although transfers to natural persons (individuals) must
include a recent photograph, duplicate fingerprint cards,
and a certification from law enforcement, the NFA also
defines a person to include a partnership, company,
association, trust, estate, or corporation. The requirements
for fingerprints, photographs, and the law enforcement
certificate specified in § 479.85 are not applicable for
transferee who is not an individual.” -NFA Handbook
•
However, the ATF has the authority to request a NICS background check of the
trustee if they wish
Bulls-eye Benefits of Gun Trusts
•
No CLEO signature, no fingerprints, no photos
• Multiple people may use the firearm
– Ownership can change with no transfer taking place
• Advantages of a Trust over a Corporation, LLC, etc
– Privacy, Cost
•
•
•
•
•
•
Clear terms – Guidance
Limit liability of co-trustees
Incapacity
Death
Reducing the risk of changes in the law
“DIY” is not a good idea
– Quicken or Legal Zoom trusts have been declared invalid by ATF
Patrick Goetzinger
Presents
HOT TOPICS
Federal Estate Tax Mess in Congress
& Recent Decisions Affecting
Farmers & Ranchers
DISCLAIMER
These materials and this presentation are intended to provide the seminar
participants with guidance in these topics of law.
The materials and speaker’s comments do not constitute, and should not be treated as
legal advice regarding the use of any particular technique or the tax consequences
associated with any such technique. Although every effort has been made to assure
the accuracy of these materials and comments at the seminar, the speakers and
Gunderson, Palmer, Nelson &
Ashmore, LLP do not assume responsibility for any individual’s reliance on the written
or oral information disseminated during the seminar. Each seminar participant should
independently verify all statements made in the materials and at the seminar before
applying them to a particular fact situation, and should independently determine all
risks and consequences of using any particular technique before recommending that
technique.
Rawhide Trust
The Ultimate Retirement Plan for
Farmers & Ranchers
• Is it Possible…
– To sell livestock & crops tax-free
– Build a retirement fund beyond the reach of Death tax
– Receive a current charitable deduction to offset other
income
– Receive an income stream for the life of both spouses
– Defer taking income until you need it
– Make a substantial gift to charity and;
– Do all this without going to jail?
• Yes, it is possible…
– Form a NIMCRUT
– Before going to market transfer a portion of crop or
livestock via deed of gift to a NIMCRUT (paper trail is
important)
– Sales proceeds go directly to NIMCRUT tax free
– Donor receives charitable deduction for a portion of cost
basis in livestock/crop because it is an ordinary income
asset
– Let the principal compound because of the NIMCRUT
feature
DONOR ADVISED FUND
The Workhorse of Your Charitable Giving Plan
Directs:
X% to Donor’s
Favorite Charities
Subject to CF’s
Variance Power
$
Donor
Advised
Fund
Agreement
Gifts
Donor
Annual Gifts
in Donor’s Name
SD Community
Foundation
$
Favored
Charities
Thank You for Attending
Please fill out the Attendee Contact
Card located in your GPNA green
folder and place it in the BOX at the
back of the room while you are
walking to lunch. A drawing will be
held for a SPECIAL PRIZE toward
the end of the lunch session.