The Strange Case of Dr. Jekyll and Mr. Oshins – Chapter I (Uniform Acts: Good or Bad?)

By Steven J. Oshins, Esq., AEP (Distinguished)

Testing his theory that in every man dwells a good and an evil force, the reserved Dr. Jekyll develops a formula that separates the two, turning him into an argumentative estate planning attorney named Mr. Oshins who tells it like it is.  Dr. Jekyll soon realizes he is becoming addicted to his darker self as he unleashes his opinions on the estate planning industry.

In Chapter I, Dr. Jekyll tackles the issue of whether Uniform Acts are good or bad.  As expected, Mr. Oshins will provide a different view of the issue than that of Dr. Jekyll.

Dr. Jekyll’s View:  Uniform Acts

It is so much easier for estate planners to do work from state-to-state when the laws are uniform.  Less mistakes are made and there is more certainty since the developed case law from one state to another is uniform.

Take for example the Uniform Statutory Rule against Perpetuities.  If every state had this law, we wouldn’t have to look up a statute when drafting an out-of-state trust in order to know how long the trust can continue.

Another example is the Uniform Trust Decanting Act.  Virginia just became the third state to adopt it, joining Colorado and New Mexico.  There are 25 states with decanting statutes and these are the only three where we can be sure that the laws are the same.  It makes planning a lot easier.

And these are just two examples!

Mr. Oshins’ View:  Uniform Acts

What would the world be like if we all looked the same, talked the same, thought the same and had the same strengths and weaknesses?  The world would not only be a boring place, but there are many things that would no longer be possible.

The greatest value that we as estate planners bring to our clients is the ability to creatively get things accomplished that many think are impossible.  Having different trust laws and different limited liability company, limited partnership and corporate laws from state-to-state allows us to forum-shop to give our clients the greatest advantages possible.

Uniform Acts are generally drafted and negotiated by a group of highly-intellectual advisors, often made up of both planners and professors.  Each member of the drafting committee is generally very knowledgeable in his or her own right, but the biggest problem is that a committee made up of such a diverse group of individuals means that there are often a wide variety of opinions.  This leads to compromise.  Statutes that arise as a result of too much compromise are often very average when judged with flexibility and opportunity as our key desires.

Conversely, the statutes that generally provide for the greatest opportunities for us to help our clients are often very one-sided in favor of the planner.  This is the essence of advanced estate planning and is often a key reason that states such as Nevada, South Dakota, Alaska and Delaware receive so much trust and business entity business.

For example, what if our clients want to avoid estate taxes for longer than the common law period?  Or what can we do if the client does not want the beneficiaries to have notice of a decanting?  Most of our clients are very private and don’t want the beneficiaries to receive a full copy of the trust.  And what can we do if our client wants to change a support trust into a fully discretionary trust in order to better protect the assets from divorcing spouses of the beneficiaries?  And what about removing a mandatory income interest via a decanting?  These are all examples of things that can be done using Nevada or South Dakota law that are generally not available in most jurisdictions.  Clearly there would be an opportunity cost if all of the states adopted uniform laws that almost certainly wouldn’t allow any of these planning opportunities.  The world would definitely not be a better place if all laws were uniform.

And with that, Mr. Oshins transformed back into Dr. Jekyll.


RELATED EDUCATION

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ABOUT THE AUTHOR

Steven J. OshSteven-Oshins43721143ins, Esq., AEP (Distinguished) is an attorney at the Law Offices of Oshins & Associates, LLC in Las Vegas, Nevada, with clients throughout the United States. He is listed in The Best Lawyers in America®. He was inducted into the NAEPC Estate Planning Hall of Fame® in 2011 and was named one of the 24 Elite Estate Planning Attorneys in America by the Trust Advisor. He has authored many of the most valuable estate planning and asset protection laws that have been enacted in Nevada. He can be reached at 702-341-6000, ext. 2, at [email protected] or at his firm’s website, www.oshins.com.


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