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1 Presenting a live 90-minute webinar with interactive Q&A Trust Situs for Dynasty Trusts and DAPTs: Key Differences Among Top-Tier States Selecting the Best Situs Among Nevada, Delaware, Alaska, South Dakota, Ohio, Tennessee and Wyoming--and Why THURSDAY, AUGUST 8, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Steven J. Oshins, Oshins & Associates, Las Vegas, Nev. Eido M. Walny, Walny Legal Group, Fox Point, Wis. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.
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5 Trust Situs for Dynasty Trusts and DAPTs: Key Differences among Top-Tier States Steven J. Oshins, Esq., AEP (Distinguished) Eido M. Walny, Esq., AEP, EPLS Law Offices of Oshins & Associates, LLC Walny Legal Group LLC 1645 Village Center Cir., Ste N. Port Washington Road Las Vegas, NV Fox Point, WI Phone: Phone: Fax: Fax: Website: Website: Copyright 2013 by Steven J. Oshins and Eido M. Walny. All rights reserved.
6 Dynasty Trust The Dynasty Trust should be the centerpiece of nearly EVERY estate plan! 6
7 Staggered Distribution Trust Nearly every trust you see from most every law firms is drafted as a staggered distribution trust A staggered distribution trust is a trust that makes mandatory distributions to the beneficiary at staggered ages (I.E. 25/30/35) This subjects the trust assets to potential estate taxes, creditors and divorcing spouses 7
8 Beneficiary Controlled Trust Rather than make mandatory staggered distributions, why not just pick an age to give the beneficiary control? Very few attorneys understand this which is why nearly every trust has the same drafting error Once the client understands that the trust can be drafted as a beneficiary controlled trust, there is no reason to ever terminate the trust 8
9 Dynasty Trust A Dynasty Trust is an irrevocable trust that is not subject to estate taxes for as long as state law allows It can also be drafted to be protected from creditors and divorcing spouses Rule against perpetuities limitations 9
10 Staggered Distribution Trust Pot Trust for Descendants Child #1 Child #2 Child #3 Distributes at 25, 30 and 35 Distributions at 25, 30 and 35 Distributions at 25, 30 and 35 10
11 Dynasty Trust Pot Trust for Descendants Child #1 Child #2 Child #3 Grandchild #1 Grandchild #2 Grandchild #3 Grandchild #4 Grandchild #5 Grandchild #6 11
12 $1 Million Example: Dynasty Trust vs. 40% Estate Tax every 30 Years After-Tax Growth Value of Dynasty Trust After 120 Years Value of Property if No Trust 3.00% $34,710,987 $4,498, % $110,662,561 $14,341, % $348,911,561 $45,218, % $1,088,187,748 $141,029, % $3,357,788,383 $435,169, % $10,252,992,943 $1,328,787, % $30,987,015,749 $4,015,917, % $92,709,068,818 $12,015,095,319 12
13 $1 Million Example: Two-Generation Trust vs. 50% Estate Tax in 30 Years Simple example Just two generations Assume 7.2% after-tax growth Rule of 72 Doubles every 10 years Results With trust = $8M to grandchild Outright = $4M to grandchild / $4M to IRS 13
14 Key Dynasty Trust States Characteristics Term Taxes 3 rd Party Spendthrift Protections DAPT Status 14
15 Key Dynasty Trust States (in alphabetical order) Alaska Delaware Nevada New Hampshire Ohio South Dakota Tennessee Wyoming 15
16 Key Dynasty Trust States Perpetuities The leading Dynasty Trust states either allow perpetual trusts or allow trusts to last significantly longer than the traditional rule against perpetuities will allows 16
17 Key Dynasty Trust States Perpetuities Alaska- Perpetual (1,000 if exercise POA) Delaware- Perpetual for personal property / 110 years for real estate Nevada- 365 years New Hampshire- Perpetual Ohio- Perpetual South Dakota- Perpetual Tennessee- 360 years Wyoming- 1,000 years 17
18 Key Dynasty Trust States State Income Tax The leading Dynasty Trust states don t have a fiduciary income tax (or don t apply it to trusts set up by an out-of-state settlor) 18
19 Key Dynasty Trust States State Income Tax Alaska- None Delaware- None (except residents) Nevada- None New Hampshire- None (except dividends, interest on residents) Ohio- None (except residents) South Dakota- None Tennessee- None (except dividends, interest on residents) Wyoming- None 19
20 Key Dynasty Trust States Third-Party Spendthrift Trust Protection Divorcing Spouse/Child Support The leading Dynasty Trust states have spendthrift trust laws protecting third-party trusts from Divorcing spouses Child support Many states make exceptions by statute or by case law Discretionary trusts vs. Support trusts 20
21 Key Dynasty Trust States Third-Party Spendthrift Trust Protection Divorcing Spouse/Child Support Alaska- Protected Delaware- Not protected from either (by case law) Nevada- Protected New Hampshire- Not protected from either (by statute) Ohio- Not protected from child support (by statute) South Dakota- Protected Tennessee- Protected Wyoming- Not protected from child support (by statute) 21
22 Key Dynasty Trust States DAPT State Ranking The leading Dynasty Trust states also have favorable Domestic Asset Protection Trust legislation Many trusts include the settlor as a discretionary beneficiary (or give a Trust Protector the power to add the settlor in as a discretionary beneficiary) 22
23 Key Dynasty Trust States DAPT State Ranking (as of July 2013) Alaska- #5 Delaware- #6 Nevada- #1 New Hampshire- #9 Ohio- #3 (tie) South Dakota- #2 Tennessee- #3 (tie) Wyoming- #7 23
24 Overall Dynasty Trust State Rankings (as of Oct next update Oct. 2013) South Dakota- #1 Alaska- #2 Nevada- #3 Tennessee- #4 Delaware- #5 (tie) Wyoming- #5 (tie) New Hampshire- #7 Ohio- #8 24
25 Domestic Asset Protection Trust A DAPT is a U.S. asset protection trust in which the trust grantor is a permissible beneficiary 25
26 Does a DAPT Work? A DAPT definitely works for a resident of the DAPT state Does it work for a resident of a non-dapt state who sets it up under the laws of a DAPT state? Very large majority believe it works Since first DAPT statute in 1997, only two cases Dahl v. Dahl, Fourth Judicial District Court, Utah County, State of Utah, Civil No , November 1, 2011 In re Huber, 2013 Bankr. LEXIS 2038, May 17,
27 In re Huber In re Huber, 2013 Bankr. LEXIS 2038, May 17, 2013 Donald Huber was a real estate investor The real estate market was crashing and Huber had numerous personal guarantees He set up an Alaska DAPT and transferred in $10,000, a 99% LLC interest (holding more than 25 different LLC interests), and other assets, thereby leaving himself insolvent Trust assets were not protected Blatant fraudulent conveyance Filed for bankruptcy: 10-year clawback per Sec. 548(e) Choice of law issue: Washington resident (bad WA statute/mastro case was WA resident) 27
28 Dahl v. Dahl Dahl v. Dahl, Fourth Judicial District Court, Utah County, State of Utah, Civil No , November 1, 2011 Charles and Kim Dahl were Utah residents Charles set up a Nevada DAPT and transferred his residence (with Kim jointly transferring the residence) and a 97% LLC membership interest (holding brokerage assets) to the DAPT Charles and Kim divorced Trust assets were protected Charles won on Summary Judgment As noted by the Court in Innerlight v. Matrix Group, LLC, 2009 UT 31, choice of law and choice of forum provisions contained in contracts and legal documents are enforceable. [Emphasis added.] 28
29 Does a DAPT Work? If almost all potential creditors have been frustrated to the point where they choose to either settle the dispute or go away altogether, doesn t this mean that almost EVERY DAPT has worked? 29
30 Key DAPT States (in alphabetical order) Alaska Delaware Nevada New Hampshire Ohio South Dakota Tennessee Wyoming 30
31 Key DAPT States State Income Tax The leading DAPT states don t have a fiduciary income tax (or don t apply it to trusts set up by an out-of-state settlor) 31
32 Key DAPT States State Income Tax Alaska- None Delaware- None (except residents) Nevada- None New Hampshire- None (except dividends, interest on residents) Ohio- None (except residents) South Dakota- None Tennessee- None (except dividends, interest on residents) Wyoming- None 32
33 Key DAPT States Statute of Limitations The leading DAPT states have a short statute of limitations period Preexisting creditors vs. Non-preexisting creditors Fraudulent conveyance issues 33
34 Key DAPT States Statute of Limitations Alaska- 4 years / 1-year discovery Delaware- 4 years / 1-year discovery Nevada- 2 years / 6-month discovery New Hampshire- 4 years / 1-year discovery Ohio- 1.5 years / 6-month discovery South Dakota- 2 years / 6-month discovery Tennessee- 2 years / 6-month discovery Wyoming- 4 years / 1-year discovery 34
35 Key DAPT States Exception Creditors The leading DAPT states have minimal exception creditors What are exception creditors? Examples Divorcing spouse Alimony Child Support Preexisting tort creditors 35
36 Key DAPT States Exception Creditors Alaska- Divorce Delaware- Divorce, Alimony, Child Support, Preexisting Tort Creditors Nevada- None New Hampshire- Divorce, Alimony, Child Support, Preexisting Tort Creditors Ohio- Divorce, Alimony, Child Support South Dakota- Divorce, Alimony, Child Support, Preexisting Tort Creditors --- only if debt at time of transfer Tennessee- Divorce, Alimony, Child Support Wyoming- Child Support, Property listed on application to obtain credit but only as to that lender 36
37 Key DAPT States Ease of Use The leading DAPT states do not make it difficult to take advantage of the DAPT opportunity It is prudent to have the settlor execute an Affidavit of Solvency when making a transfer to the DAPT Some of the DAPT states require a new Affidavit of Solvency for every new transfer to the DAPT 37
38 Key Dynasty Trust States Ease of Use Alaska- Affidavit required Delaware- No affidavit required Nevada- No affidavit required New Hampshire- No affidavit required Ohio- Affidavit required South Dakota- No affidavit required Tennessee- Affidavit required Wyoming- Affidavit required 38
39 Key DAPT States Clear and Convincing Evidence The leading DAPT states require the creditor to prove a fraudulent transfer to the DAPT by clear and convincing evidence This is a high hurdle 39
40 Key Dynasty Trust States Clear and Convincing Evidence Alaska- Clear and convincing Delaware- Clear and convincing Nevada- Clear and convincing New Hampshire- Limited Clear and convincing Ohio- Clear and convincing South Dakota- Clear and convincing Tennessee- Clear and convincing Wyoming- Clear and convincing 40
41 Overall DAPT State Rankings (as of July 2013) Nevada- #1 South Dakota- #2 Ohio- #3 (tie) Tennessee- #3 (tie) Alaska- #5 Delaware- #6 Wyoming- #7 Rhode Island- #8 [This state not discussed today] New Hampshire- #9 41
42 Links to State Annual State Rankings Charts Annual Dynasty Trust State Rankings Chart can always be accessed at _Rankings.pdf Annual Domestic Asset Protection Trust State Rankings Chart can always be accessed at gs.pdf 42
43 Thank You For Attending Today s Seminar Steven J. Oshins, Esq., AEP (Distinguished) Eido M. Walny, Esq., AEP, EPLS Law Offices of Oshins & Associates, LLC Walny Legal Group LLC 1645 Village Center Cir., Ste N. Port Washington Road Las Vegas, NV Fox Point, WI Phone: Phone: Fax: Fax: Website: soshins@oshins.com Website: ewalny@walnylegal.com
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