Why Do Nevada and Delaware Get Most of the ING Trust Business?

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

We keep hearing about NING Trusts (Nevada) and DING Trusts (Delaware).  Occasionally, but much less often, we hear about WING Trusts (Wyoming) too.

Nevada and Delaware clearly get the vast majority of the ING Trust business.  Wyoming seems to be the next jurisdiction to take a reasonably good chunk of the pie.

Is this because these jurisdictions actually have the best laws?  Or is it simply a function of good marketing?  The words “NING”, “DING” and “WING” just roll off the tip of your tongue, eh?

Let’s take a close look at ING Trusts and which jurisdictions are actually best for these trusts.

What is an ING Trust?

The term “ING Trust” stands for Incomplete Non-Grantor Trust.  Transfers to the trust are incomplete for gift tax purposes which means that there is no gift tax for any transfers to the trust.  However, for income tax purposes, transfers to the trust are complete and the trust is a non-grantor trust so that the trust pays all income taxes at its federal income tax brackets.

The primary use for an ING Trust is to save state income taxes.  Therefore, the typical client is a resident of a state with a high state income tax who is either selling a business or other asset that will have a large capital gain or who has an asset, such as a large brokerage portfolio, that has sizable distributions that would be taxed by the client’s home state if the client hadn’t set up the ING Trust.  It is important to note that income earned by an asset, such as a locally-run business or local real estate, is considered sourced to the client’s home state and therefore cannot avoid state income taxes using the ING Trust.

The trust must be sitused in a jurisdiction that has Domestic Asset Protection Trust statutes in order to avoid being a grantor trust for income tax purposes.  An ING Trust is simply a non-grantor Domestic Asset Protection Trust.  In addition, the chosen jurisdiction must not have a fiduciary state income tax.  That excludes many of the Domestic Asset Protection Trust jurisdictions, leaving only a small handful of other states where this technique is viable.

The Details

Unlike nearly every other estate planning technique, the ING Trust requires the client to give up some control.

First, since the ING Trust can’t have any trustees who live in the client’s home state, the client can’t be a trustee and therefore loses direct managerial control over the trust assets.  However, the client can retain the power to remove and replace trustees, so this loss of control is merely indirect control with the presumption being that the selected trustees will invest based on the client’s wishes.

Second, the ING Trust must have a Power of Appointment Committee (also sometimes called a Distribution Committee) made up of adverse parties initially selected by the client from the potential distributees of the trust.  This Committee makes distribution decisions either (a) by unanimous vote or (b) by majority vote plus the vote of the client.  The client cannot retain the power to remove and replace the Committee members, so the technique does not work well for a dysfunctional family.

Choice of Situs

Now let’s get back to the choice of situs.  As noted earlier, Nevada and Delaware get the vast majority of the ING Trust business, and Wyoming seems to get the next most.  For whatever reason, other jurisdictions don’t ever seem to be mentioned.

My belief is that this is simply great marketing by those in these three jurisdictions.  Yes, the favorable laws there help somewhat, but it’s mostly about the marketing buzz.

An ING Trust is simply a non-grantor Domestic Asset Protection Trust (“DAPT”).  Therefore, logically, one would conclude that the leading DAPT jurisdictions should mirror the leading ING Trust jurisdictions.

Nevada (#1) and South Dakota (#2) are the leading DAPT jurisdictions.  It’s not even close.  Therefore, those should be the two leading ING Trust jurisdictions as well.  It’s that simple.

After the Big Two, I currently have Delaware (#3), Tennessee (#4) and Ohio (#5) next.  Logically, these three jurisdictions should also get a piece of the ING Trust pie since they are all great DAPT jurisdictions.

But despite my rankings, which I take very seriously to be as accurate as possible, marketing seems to win over and “NING”, “DING” and “WING” roll off the tongue a bit better, I suppose.

Summary

We hear about NING Trusts, DING Trusts and WING Trusts.  A lot of this is because of good marketing.  Unfortunately for the other competing trust jurisdictions, the marketing of certain trust jurisdictions is very powerful.  It’s time for someone in the other jurisdictions to start authoring some articles, lecturing and posting marketing materials all over the internet in order to grab a share of the ING Trust pie!

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ABOUT THE AUTHOR

Steven J. OshSteven-Oshins43721143ins, Esq., AEP (Distinguished) is a member of the Law Offices of Oshins & Associates, LLC in Las Vegas, Nevada. He was inducted into the NAEPC Estate Planning Hall of Fame® in 2011. He was named one of the 24 “Elite Estate Planning Attorneys” and the “Top Estate Planning Attorney of 2018” by The Wealth Advisor and one of the Top 100 Attorneys in Worth. He is listed in The Best Lawyers in America® which also named him Las Vegas Trusts and Estates/Tax Law Lawyer of the Year in 2012, 2015, 2016, 2018, 2020 and 2022. He can be reached at 702-341-6000, ext. 2 or at soshins@oshins.com or at his firm’s website, www.oshins.com.

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