By Tiffany A. Oshins and Steven J. Oshins, Esq., AEP (Distinguished) Three-year-old student Tiffany A. Oshins (“Tiffany”) recently sat down with her father, estate planning attorney Steve Oshins (“Daddy”). Tiffany interviewed Daddy about asset protection planning and Domestic Asset Protection Trusts. Below are highlights from the interview. [Daddy helped Tiffany with a lot of her spelling.] Tiffany: I overhear you talking about asset protection planning all the time. How do you start this conversation with prospective clients? Daddy: Many of them come to me specifically for asset protection planning. So the conversation is simple with them because they already have that…
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…
Poll Results: Which Is the Best Trust Jurisdiction?
By Steven J. Oshins, Esq., AEP (Distinguished) In a one-week LinkedIn poll conducted in March of 2023, I asked thousands of people primarily made up of estate planners and financial planners: “Which is the best trust jurisdiction?” Among 5,104 “impressions” (number of times users see the poll question), there were 123 total votes. The permitted responses were limited to Nevada and South Dakota simply because these are so clearly the two best trust jurisdictions and therefore there was no reason to dilute the votes by including additional options. Results The results were as follows: *Nevada …
Heckerling 2023 Reports from the ABA
The Phillip E. Heckerling Institute on Estate Planning is the nation’s premier conference for estate planning professionals, offering unparalleled educational and professional development opportunities for all members of the estate planning team. The 2023 Heckerling Institute was held in-person in Orlando on January 9-13 and marked the conference’s 57th year. Over the course of the conference’s five days, numerous timely topics of interest to estate planners of all designations—including, but not limited to, attorneys, trust officers, accountants, charitable giving professionals, elder law specialists, wealth management professionals, and nonprofit advisors. As they have done for many years, the American Bar Association…
The HUGE Problem with DAPT Jurisdictions that Require Affidavits of Solvency
By Steven J. Oshins, Esq., AEP (Distinguished) At the time of this writing, there are twenty states that have enacted Domestic Asset Protection Trust (“DAPT”) statutes. However, not all of these states have superior laws. This article describes just one of many differences among the various states’ DAPT statutes. Specifically, it explains the Affidavit of Solvency differences among these states. What is an Affidavit of Solvency? An Affidavit of Solvency is a sworn statement that indicates that the transfer of assets an individual is about to make will not render that individual or entity bankrupt or insolvent. Attorneys generally have…
The “L” in SLAT: “Lifetime” or “Limited”?
By Steven J. Oshins, Esq., AEP (Distinguished) Some articles call it a Spousal Lifetime Access Trust, while others call it a Spousal Limited Access Trust. Which is it? It can’t be both! It depends upon how it’s drafted. Spousal “Limited” Access Trust When I draft a SLAT, it’s a Spousal Lifetime Access Trust because distributions aren’t “limited”. Why would the draftsman want to limit distributions? One of the objectives is for the settlor to be able to indirectly live out of the trust via distributions to the settlor’s spouse who can then share them with the settlor. Drafting in substantial…
Why Nine of the Domestic Asset Protection Trust Jurisdictions Have a Big Problem
By Steven J. Oshins, Esq., AEP (Distinguished) Nineteen domestic jurisdictions have statutes that allow a person to set up a Domestic Asset Protection Trust (“DAPT”). A DAPT is an irrevocable trust set up by a person (the “settlor”) for the benefit of him/herself and other beneficiaries. Under the statutes of each of those jurisdictions, after a certain waiting period, the assets transferred to the trust by the settlor should be protected from the settlor’s creditors. Affidavit of Solvency Asset protection planners will generally have their clients sign an Affidavit of Solvency which essentially says that the client isn’t making a…
Don’t Require a Prenup for a Trust Beneficiary to Be Eligible for a Distribution!
By Steven J. Oshins, Esq., AEP (Distinguished) I have seen so many trusts drafted with a provision requiring a married beneficiary to have a prenuptial agreement in place in order to be eligible to receive a distribution from the trust. This seems to be a staple in many law firms’ “form” trust agreements. Let’s analyze the logic. The attorney (or many times the client) believes that by requiring that a beneficiary have a prenuptial agreement in place it will therefore almost force the beneficiary to do so and therefore somehow magically protect the trust assets. However, such a provision actually…
The Floating Spouse Provision and More: Designing a Spousal Lifetime Access Trust for Maximum Access and Maximum Divorce Protection
By Steven J. Oshins, Esq., AEP (Distinguished) A Spousal Lifetime Access Trust (“SLAT”) is an irrevocable trust for the benefit of the settlor’s spouse and descendants. The settlor makes transfers to the trust that must come from the settlor’s separate property. If drafted properly, the trust assets are protected from the creditors and divorcing spouses of the settlor and of the beneficiaries and aren’t subject to estate taxes (if using a completed gift version) when the settlor and settlor’s spouse pass away. THE KEY IS IN THE DRAFTING A general fear that many clients and advisors have is that they…
The Strange Case of Dr. Jekyll and Mr. Oshins: Staggered Distribution Trust versus Dynasty Trust
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 this article, Dr. Jekyll and Mr. Oshins tackle the differences between a Staggered Distribution Trust and a Dynasty Trust. As expected, Mr. Oshins will provide a different view…