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           …

9th Annual Non-Grantor Trust State Income Tax Chart Released!

By Steven J. Oshins, Esq., AEP (Distinguished) Different states have different rules as to what creates a “resident trust” that is subject to taxation in that state. States may tax a trust based on the residency of the settlor or testator, based on whether there is a resident trustee or beneficiary or whether there is administration in that state, or for a combination of these factors and/or other similar factors. So it isn’t as easy as simply situsing a trust in a state with no state income tax. You have to look at the state taxing statutes that may apply….

When the Prospective Client Says, “How Much Does It Cost?”

By Steven J. Oshins, Esq., AEP (Distinguished) The cost of the legal work will at some point become part of the up-front discussion with a prospective client. Many such prospective clients hear how much the legal fees are and roll their eyes as though they are being suckered.  I’ve had many conversations go something like this: Prospective Client: How much does it cost? Attorney: We charge $30,000. Prospective Client: That much?  I was quoted $5,000 by another attorney. Attorney: That was to prepare a Revocable Trust.  I’m trying to do advanced estate planning for you which should save your family…

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…

Why Not To Use Incentive Clauses in Trusts

By Steven J. Oshins, Esq., AEP (Distinguished) Many attorneys draft incentive clauses into trusts. An incentive clause generally makes additional distributions to the beneficiary upon reaching certain milestones. Probably the most popular incentive clause is one which makes mandatory distributions based on matching the beneficiary’s salary. That sounds great until you actually think through a real-life example and the disastrous results. A REAL-LIFE EXAMPLE Assume that Client has three young children. Child A grows up to be a top surgeon earning $3 million per year. Child B becomes a stay-at-home parent to three wonderful children and is one of the…

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…