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…
The Inheritor’s Trust: How I Want to Inherit from Mommy and Daddy
By Tiffany A. Oshins The term “Inheritor’s Trust” was service marked at the Patent & Trademark Office by my Daddy (Steve Oshins), my Grandpa (Richard Oshins) and another attorney (Noel Ice) in 2003. They abandoned the service mark in 2006 after the Patent & Trademark Office determined it to have become a term of common usage. Despite the abandonment of the service mark, the estate planning industry continues to use the term. As a potential future inheritor, I would like to receive all gifts and bequests from Mommy and Daddy in an Inheritor’s Trust. This article will explain this concept…
The Estate Planning “Perfect Storm”
An Interview with Steven J. Oshins, Esq., AEP (Distinguished) Nationally-known estate planning attorney Steve Oshins and nationally-known CPA Bob Keebler recently gave a joint teleconference for us entitled, “Estate Planning Techniques in a Time of Low Interest Rates”. In that presentation, Steve and Bob coined the term “PERFECT STORM” to reflect the current estate planning environment. We interviewed Steve after the session and are pleased to bring to you highlights from the transcript of the interview. UEP: Why did you and Bob call the current estate planning environment the “PERFECT STORM”? SO: We did so for two reasons. First of…