Why You Need to Establish a Trust Versus a Will: Protect Both Your Assets and Your Privacy

Have a will, but don’t think you need a trust? You may want to think again.

It’s a misconception that trusts are only for the ultra-wealthy. For many people, a trust should be an essential part of a sound and smart financial strategy. If you don’t think you need a trust, here are a few examples of why you might:

  • You want your money and assets equally distributed to your heirs.
  • You want your estate to go to your biological children and not your step-children.
  • Ensure higher education paid for before asset distribution.
  • Mitigate estate taxes for your family.
  • Protect your assets from your creditors or the creditors of your heirs.
  • More privacy surrounding your money and assets.

These are just a few examples. The list could go on and on.

Bottom line: if you have assets such as investments, a home, or other property such as a boat or vacation home and you want to avoid additional taxes and specify who inherits your assets, when they inherit, and how, you need a trust.

The Benefits of a Trust

Aside from detailing the fate of your assets, trusts have many specific benefits to both you and your beneficiaries.

Save Time and Money by Avoiding Probate

If you have a will but not a trust, your assets will go through the public process of probate. Upon your death, all of your assets will go into probate, and the court proves that your will is valid.

Typical Probate Process

  • The court inventories your property and assets;
  • The court then pays outstanding taxes and debts;
  • The court assesses your probate tax;
  • The court distributes the assets to the wishes of your will or by state law if you do not have a will in place or you did not correctly draft your will. Your estate plan should be reviewed regularly as estate laws evolve. Alliance can refer you to attorneys that will assist you.

The probate process can take up to a year, and in the meantime, your family will be without their inheritances. Sometimes the court allows some of your estate to be distributed during probate, but often your family is left waiting.

YOU Control Distribution

A trust allows you to detail exactly how, when, and to whom you’d like your assets distributed. You can choose to have your assets distributed over time or in one sum and even how you want the assets utilized. For example, you can specify that the money is only for the use of living expenses such as food and housing.

Controlling distribution can be highly effective in situations where you are unsure about how your beneficiaries will handle receiving a large sum of money. Often, grantors want to be certain bad decisions don’t squander their wealth.

A Trust is Difficult to Contest

While a will is easy to challenge, a trust is not. If you fear that someone will be unhappy with your decisions and wish to challenge the distribution of assets, a trust is a much safer option.

There are two ways to challenge a trust, both requiring significant proof:

  1. The grantor was not in the right mental state when setting up the trust.
  2. The grantor was under “undue influence” when drafting the trust and did so under someone else’s influence.

Even with these potential challenges, a trust is much more likely to withstand contest than a will.

Cover Educational Costs

Many grantors want to be sure that educational costs for their beneficiaries are covered first before the distribution of assets. You can specify whether each child should get the same amount after education costs, or whether distribution should be contingent on education costs.

An educational trust fund provides a lot of flexibility and control for a beneficiary to ensure their educational goals for their children are met even after their death.

Specify the Division of Property

Some assets are more difficult to divide than others, such as real estate or other personal property like boats or cars. A trust helps make these things easier to divide by allowing the grantor to specify precisely how to transfer the property upon their death.

A grantor can choose who gets what property, whether they can sell the property and if so, how they should sell the property and divide the proceeds. The trust can provide equal access to the property for each beneficiary or even allow them to buy each other out if they wish.

Avoid (or at Least Reduce) Estate Taxes

Assets placed into a trust are not subject to estate taxes. A trust gives grantors the ability to give tax-free gifts from the estate to their children up to the annual exclusion. The annual exclusion states that grantors can give gifts up to a certain dollar amount annually without incurring taxes.

Estate taxes only apply to estates worth $1 million or more, so they don’t apply to most. You do, however, need to be sure you understand the full value of your estate. Remember to factor in the value of your home and any other assets, not just your liquid assets and investments.

Enjoy More Privacy

As we mentioned earlier, if your estate is in a will and goes into probate, it is a public process. With a trust, your assets remain private. While a public record is sometimes necessary, it is not common. In many cases, you can find ways to work around disclosing records publically.

Keep Family Harmony Intact

After the death of a family member, there is grief and many emotions involved. A trust is an easy and straightforward way to ensure that emotional factors don’t play a part in the distribution of assets.

It can be easy for family feuds to arise during the division of an estate. A trust can be customized to precisely specify what each heir will inherit, leaving nothing to be argued over. A trust can even ensure that only the beneficiary has access to their inheritance and exclude spouses, step-children, or anyone else a grantor desires.

Who controls the trust? You do! Or a trusted family member, friend, or independent corporate trustee whom you appoint. Unlike a will, you control every aspect of a trust before and after your death to ensure your family is immediately protected.

Nevada carries the most advantageous privacy and asset protection laws in the U.S. You do not have to live in Nevada to take advantage of Nevada’s trust jurisdiction. Alliance Trust Company of Nevada has vast experience with both domestic and international complex estate planning and taxation strategies. Moreover, Alliance had a significant network of Nevada attorneys, advisors, and CPAs that we can refer you to. Do not hesitate to reach out to learn more about what Nevada can do for you!

The Appropriate Time For An International Family To Establish a U.S. Trust May Be Now

Your Family Could Benefit From the Flexibility, Control, and Tax Benefits of a U.S. Trust

The changing global economy is causing international families to have to look at their trust structures and re-evaluate. Many international families have assets in multiple countries (including the U.S.). Or, they have children who have moved stateside. Both are factors significantly impacting the way assets are taxed and how they are distributed.

The United States is experiencing an increasing influx of non-resident alien (NRA) children. Families outside of the U.S. are looking for a way to avoid the whopping 40% tax rate that assets over $60,000 would endure upon their distribution to a family member in the U.S.

You do not have to live in the U.S. to establish a trust in the U.S. However, you will need to work with professionals to ensure your trust is designed appropriately and that you choose the most beneficial state in the U.S. in which to establish your trust.

In addition to establishing a trust in the United States, non-U.S. families should consider the state of Nevada as the ideal situs for their trust. Nevada has especially favorable trust and tax laws and no state, nor corporate, income taxes as well as superior privacy and protection laws.

When Should You Consider a U.S. Trust?

1. If You or Your Family Own Assets in the U.S.

The estate tax exemption in the U.S. for non-resident aliens is $60,000. After that, you are subject to that 40% tax we mentioned earlier. An irrevocable trust fund that’s funded by non-U.S. assets or a foreign blocker corporation often eliminates these taxes.

A properly structured trust could include a foreign grantor trust, which contains both a U.S. and non-U.S. entity. A foreign grantor trust serves to protect the non-U.S. assets from high estate taxes and to protect the U.S. assets from capital gains and income tax making it a very desirable option for NRA’s.

Even U.S. families with U.S. assets spread over several states require complex structuring to ensure their trust is serving them well. When it comes to families spread across several countries, the need for legal and trust professionals is even more significant to ensure your assets are protected and distributed according to your wishes and with the least amount of taxable income possible.

2. If an Immediate Beneficiary is Planning to Move to the U.S.

If you know your beneficiary will move to the U.S., and you want to receive the maximum estate tax and income tax benefits on your assets, a U.S. trust is a powerful tool. Inheritances of non-U.S. assets by U.S. persons can be tax-free when adequately structured.

Properly structuring your trust in the U.S. requires appointing an offshore trustee in a U.S. trust jurisdiction such as Nevada. This trustee then declares a new trust and foreign assets may be poured over into the trust.

3. If a Future Beneficiary is Getting Married to a U.S. Citizen (or Not)

Nevada trust law tested against divorce settlements in court and held up when it came to the divorcing spouse’s access to the trust. Divorcing obligations such as child support and alimony will still be settled. However, the assets in trust remain protected. For families who wish to keep assets and family businesses within the family tree, Nevada trust law can keep wealth within a family for generations with a Nevada Dynasty Trust.

There are several trusts that could prove advantageous in this scenario, but those marrying a U.S. citizen often use qualified domestic trusts to achieve their desired objectives.

4. A Future Beneficiary is Applying for a “Green Card” (a permanent U.S. resident)

It’s imperative to establish a U.S. trust before a “green card” is obtained because once a green card is in hand, the trust options are much more limited.

Families need to take into consideration all tax and trust options before a future beneficiary makes a permanent move and get assets settled before they become a resident. Otherwise, assets may be subject to IRS reporting and taxation.

5. The Grantor is Interested in U.S. Tax-Free Legal Protections

If you desire tax-free legal protections in the U.S., you need to evaluate the state of Nevada. Nevada does not allow for claims of alter ego or sham trusts. In Nevada, the only recourse for a creditor is a claim of fraudulent conveyance, which is void after assets migrate into the Nevada trust (Nevada carries a two-year statute of limitations seasoning period).

Nevada has exceptional industry-leading legal protections, arguably the very best in the United States. The rule of law in Nevada surrounding trusts is well established and well respected. Nevada has no state or corporate income taxes.

Moreover, several trusts have been tested in Nevada courts. No other state has stronger asset protection precedents than Nevada. Click here to read about a recent asset protection Nevada Supreme Court case.

Weighing the Benefits v. the Risk of a U.S. Trust

While the list above is by no means exhaustive, it should give you a good idea of why a U.S. trust may be beneficial to you.

Weighing the benefits and risks should really be a simple part of your decision. Many families seek to establish their trust in the U.S. for economic stability and the benefit of establishing their assets in a non-blacklisted country. If your family has a beneficiary who is seeking residence in the United States, a U.S. trust should be established well in advance of their departure.

A U.S. trust, properly structured and established at the right time can save families big on taxes and even eliminate some taxes. Like any complex estate planning strategy, it’s necessary to employ the right professionals to help you take advantage of your unique situation.

Alliance Trust Company of Nevada has many years of experience both with complex domestic trusts and very complex trusts established by non-resident families. We would be happy to help you navigate establishing your trust in the state of Nevada to optimize your tax benefits, privacy, and protection.

SCOTUS Highlights and Insights From the Kaestner Oral Arguments

The United States Supreme Court Hears Oral Arguments for North Carolina v. Kaestner

On April 17, 2019, the United States Supreme Court heard the oral arguments in perhaps the most significant trust case in 100 years: North Carolina Department Of Revenue, Petitioner, V. The Kimberley Rice Kaestner 1992 Family Trust, Respondent. 

The crux of the Kaestner case is whether the state of North Carolina should be able to constitutionally tax trusts where the only connection to the state is that the beneficiary is a resident.

In the state of North Carolina, the taxpayer won throughout the entire court system, but North Carolina appealed successfully to the U.S. Supreme Court.

Matthew W. Sawchak, North Carolina Solicitor General, argued on behalf of the Petitioner and David A. O’Neil, Esq., of Debevoise & Plimpton LLP  on behalf of the Respondent.

In the hour-long arguments, the Justices actively participated, frequently interrupting the counsels. Overall, based on our initial analysis of the transcript, the line of questioning from the majority of the Justices seemed to be slightly more sympathetic to the Respondent. However, there were several times the Justices were challenging the Respondent’s arguments.

As always with the Supreme Court, it is difficult to tell the outcome until the decision is published.

Hypothetical Outcomes

More Context By Including the Fielding Case?

The central argument seems to focus on what is the connection of a trust to a location – trustee, place of administration or the beneficiary. Interestingly, there was no discussion over the location of the grantor – which is the central argument in the Fielding case from Minnesota.

We are closely watching to see if SCOTUS will hear Fielding as well providing more context to taxing resident trusts.

In this case, there are many ways the court could decide whether to grant for the respondent, rule for the petitioner, or the send the case back to North Carolina for further analysis.

Michael Redden, Redden Law, PLLC, Provides Insight

We reached out to an estate planning attorney in Minnesota with whom we have been closely monitoring the Fielding case which carries similar trust taxation issues as the Kaestner case.

Click here to see our summary of both cases.

Michael Redden shared his insights with the oral arguments with us:

“The Court took note that the state was essentially asking the Court to overturn 100 years of tax precedent to reach the conclusion that the beneficiaries residence alone should determine. It is essentially a personal jurisdiction question. Who owns the trust assets? When do they own the trust assets? Traditionally, it has always been the trustee and not the beneficiaries.

“This is analogous to the legal fiction that a corporation is a person. A corporation is a separate person from the shareholders. The shareholders ultimately benefit from the economic activity, but the corporation is separately taxed and has separate legal character. The same principle applies here but is even more powerful.

“Why?

“Because there is an actual person there: the trustee. The beneficiaries may ultimately benefit, but the ownership is held in the personhood of the trustee.

“Discretionary trusts further embody this. The court seemed to look to this ownership question: When does the beneficiary own the property?

“It’s when they control the property. Just like when stock options and incentives vest. The Court focused on this question.

“Interestingly enough, the Court also spent time considering the ability of a beneficiary to change tax residency and how that might affect the state of taxation. This topic will be central to any consideration of the Fielding case should the Court decide to hear it. One way or another, either 100 years of tax precedent will be adjusted or the tax regimes of 33 states will.”

Expectations and Speculations

Based on the arguments, we were pleased that the Court seems to be settling in that this is a Due Process case (and not a Commerce Clause case) and seems to be set on deciding either way based on the arguments.

Our expectation, given the arguments, is that we don’t think the Court will give practitioners broad constitutional direction on all state trust taxation laws, but narrower guidance on the taxation of beneficiaries.

It is possible that the Court could solely rule regarding the taxation of discretionary trusts as the arguments centered around them.

Much Chatter Regarding Throw-Back Taxes

It would not be unreasonable for the court to opine that current state income taxation of undistributed trust income would be unconstitutional, but throw-back taxes would be permissible.

A combination of a narrow ruling on Kaestner and the Court not granting a writ of certiorari on Fielding could lead to an interesting situation for practitioners.

Furthermore, given the discussion surrounding adjudication v. taxation, it will be interesting to see whether the Court’s opinion will impact out-of-state asset protection trusts, specifically states’ arguments over jurisdiction of trusts.

Highlights from the Oral Arguments

Below, we highlight some of the exchanges and questions from the discussion yesterday. For those who are interested in the full transcript, it is 69 pages.

You may check the transcript out here.

All text within quotations is taken from the SCOTUS transcript linked above.

Initial Questions from Justices Ginsburg and Sotomayor

Right away, Justice Ginsburg asked Mr. Sawchak: “But you couldn’t – you couldn’t tax the beneficiaries on that accumulated income when they haven’t received it?”

Justice Sotomayor chimed in a bit later to the Petitioner: “But it still begs the question. What makes it your right under any circumstance to tax all of the trust income where there’s no guarantee that she is going to receive all of it at any point?”

Justice Breyer weighs in

Justice Breyer had one of the most extended remarks from Mr. Sawchak: “Look, the trustee lives in New York, okay? The settlor is in New York. All the administration is in New York. There is one thing that’s going to happen in North Carolina. The thing that’s going to happen in North Carolina is if she is there when it’s distributed, she’ll get some money. Okay? Which you’re totally free to tax. But that isn’t what want to tax. You want to tax all these things which are everyone except her is in New York, and moreover, we don’t even know if she’ll ever get the money.

“Now there’s something wrong with that. I don’t know, it doesn’t say specifically about trusts in the Constitution, but, thus, I mean, lots of trusts say there are 10 beneficiaries, each one lives in a different state, and I, the trustee, have total discretion as to who give this money to and maybe I’ll give it to none of them.

“So here’s a woman who might get none of it, and you want to tax that. Is that right? Do I have the facts right?”

Justice Breyer later looked to simplify his line of questioning: “Let me make it simpler. There are five beneficiaries. One lives in North Carolina. As it turns out, that one in North Carolina gets $3. The others get $999,997. But North Carolina does not tax $3. What it taxes is 20 percent or $200,000. Do I have my facts right?”

Justice Sotomayor: is unequally taxing beneficiaries leading to changing grantor’s intent

Justice Sotomayor’s line of questioning is asking whether unequal state taxation could be interpreted as potentially changing the settlor’s intent and if the trustee needs to take that into account in distribution decisions.

Justice Sotomayor asks: “But you’re changing the trust instrument because you as a state are saying the trust must give them 20 percent each, because, regardless of what the terms of the trust are, I’m going to tax you on that 20 percent even though you might get none, even though you might get more. You’re still a trust, you’re being charged for 20 percent because you should have given her 20 percent. That’s really what you’re saying, isn’t it?”

Mr. Sawchak: “That –you’re right, Your Honor, to say there is a –assuming nothing’s in the trust instrument, there would be a full –”

Justice Sotomayor: “No, there is something in the trust instrument here. The trust instrument says that the trustee has absolute discretion to give her something or nothing, to give three people–I think there’s two or three children; I don’t know how many there are here, but let’s assume there’s four of them, her and three children, for using even numbers.

“The trustee could choose to –if she had a disabled child, to give it all to the disabled child or to divide it among the three because she’s very rich and they’re not. The trustee has a lot of discretion. But you, the state, are changing the terms of the trust instrument in saying each of them must still pay 25 percent.”

Mr. Sawchak: “That is correct, that nothing else appearing, we make the pro rata. And here’s why that’s fair. First of all, throughout the period in question, those people had true ownership of the accumulating assets. Secondly, also essentially on a pro rata basis, North Carolina is protecting each of them.”

Back-and-Forth Between Justice Gorsuch and Mr. Sawchak regarding overruling SCOTUS precedents

Justice Gorsuch: “And, counsel, along those lines, if I’m –if I’m understanding your position correctly, because you think that rule is inequitable, you’d have us overrule Safe Deposit and Brooke, two decisions of this Court that suggest that that’s the correct rule, is that right?”

Mr. Sawchak: “Not overrule them, Your Honor. They could be –”

Justice Gorsuch: “Well, what would you have us do with them if it’s not overruling them?”

Mr. Sawchak: “Two things, Your Honor. First of all, they can be distinguished in terms of being property tax cases versus income tax cases, because this Court –”

Justice Gorsuch: “Let’s say I don’t find that distinction particularly significant. It’s slicing the baloney a little too thinly. Then what?”

Mr. Sawchak: “Then we would be really within the proposition of the due process part of Quill, where these are decisions that have been superseded by the movement –”

Justice Gorsuch: “Right. You’re -you’re asking us to overrule them. I mean, it’s a polite way of saying overrule, isn’t it?”

Mr. Sawchak: “They’ve probably, frankly, already been laid aside by other –by the due process decisions, as this Court’s noted in -”

Justice Gorsuch: “But that’s a -that’s a really nice way of saying overrule them.”

(Laughter.)

Justice Gorsuch: “Right?”

Mr. Sawchak: “They’ve probably already been -”

Justice Gorsuch: “I’ve already been overruled; we just haven’t said so.”

Mr. Sawchak: “That’s probably right, Your Honor, and let me say why that’s –”

Justice Gorsuch: “Okay. All right. And –and you’d have us overrule them in the name of fundamental fairness, is that right?”

Mr. Sawchak: “In the name of fundamental fairness because –”

Justice Gorsuch: “And –and Justice Breyer’s problems notwithstanding, that–that fundamental fairness problem, we shouldn’t take into account?”

Mr. Sawchak: “No, there are criteria, a variety of criteria out there, and every one of them –”

Justice Gorsuch: “That’s more fundamentally fair than the existing rule of this Court that’s almost 100 years old?”

Mr. Sawchak: “So query whether that really is the existing rule, first of all. Those are –”

Justice Gorsuch: “Well, right, except for the fact that we haven’t overruled it, but we really have. Okay. But assuming we thought those were still precedents of the United States Supreme Court –let’s just spot me that for the moment.”

(Laughter)

Justice Gorsuch: “–you think it’s more fair to overrule them and proceed down the track we’ve just illuminated with Justice Breyer than to maintain them?”

And later Justice Sotomayor asks: “Hanson, you would be asking us to overrule because I don’t know how you can tax somebody you have no jurisdiction over, especially if they haven’t done anything like pay any money over or have no contacts with the person in your state. All the meetings were in New York. So add a third case you want to overrule.”

Justice Sotomayor’s exchange on trust location

Justice Sotomayor: “So how is the trust in your state?”

Mr. Sawchak: “Pardon me, Your Honor?”

Justice Sotomayor: “I thought the trust is represented by the trustee. And the trustee is not in your state.”

Mr. Sawchak: “The –the trust has its presence –”

Justice Sotomayor: “It’s not being administered in your state.”

Mr. Sawchak: “True, but its true owner, its central figure, is in North Carolina. Let me offer”

Justice Sotomayor: “So why didn’t we say that in Hanson?”

Mr. Sawchak: “So Hanson, first of all, is a situation where the burden of adjudication, by the way, not taxing, fell on the person of the trustee. This Court in Walden described –”

Justice Sotomayor: “The same thing here. You’re making the trustee liable for paying the tax. You’re doing exactly what happened in Hanson.”

A discussion on discretionary v. non-discretionary trusts with Mr. O’Neil, the counsel for Respondent

Justice Kagan: “Would your position be different if she were–if–if the–if the trustee did not have this discretion as to shares? Suppose that the –the trust instrument simply said, here are the five beneficiaries. The trust will be distributed pro rata. You know, if one dies, then it will be distributed pro rata as to the other four. But –but –but the beneficiaries all know that they’re going to get a fifth of this money. Would your answer be different?”

Mr. O’Neil: “If the trust instrument gave her a vested, current right to the income, then we wouldn’t –”

Justice Kagan: “Not a current right. She’s going to have to wait until she’s whatever years old, 30, 40, whatever. She can’t pull the money now. But she’s going to get the money one day.”

Mr. O’Neil: “No, that –that case would not be different because it would still be based on this speculative possibility that she will ultimately receive the money.”

Justice Kavanaugh brings up whether they can leave some points open

Justice Kavanaugh: “If –I thought we didn’t need to answer the question raised by Justice Kagan’s previous hypothetical, and just raised by you, which is, if we did know, in other words, if it were guaranteed or certain, that might or might not be a different case.

“But this case is one where we don’t know based on the nature of the trust contingent or discretionary beneficiary, and for that case, the answer, I thought you were arguing, should be that the state where the beneficiary resides cannot tax, but we could leave open the question raised by Justice Kagan’s hypothetical.”

Later, Justice Sotomayor added: “So the thing that Justice Kavanaugh and Justice Alito were reserving, and I assume Justice Kagan, was on the question of what happens if she is a guaranteed distributor–distributee, meaning she can’t call it today, but at age 40 or at the end of the trust life, at some point, she’s going to be the 100 percent owner or going to be a fixed 10 percent owner, whatever it might be, they’re saying we should reserve on that question?”

Justice Alito sympathetic to Respondent

Justice Alito: “But I thought this case was simpler than your argument seems to be making it. I thought this was a case about a state imposing a tax on someone for money that that person may never get. And if –and if the person ever gets some money, we’d have no idea how much that money would be. Isn’t that what this case is about?”

Could states impose throw-back taxes as the Federal Government does with offshore trusts?

Mr. O’Neil: “Can the trust? No, at that point, it won’t be trust property. At that point, it will be the beneficiary’s property. And this –you know, the federal government has the same issue. U.S. citizens can have trusts that are located abroad, and what the federal government does is impose a throw-back tax so that when the beneficiary actually receives the money, the beneficiary can be taxed not only on that distribution but also on –on income that had accumulated in previous years and that the trustee did not pay taxes on.”

Justice Kavanaugh: “And throw-back taxes are –are permissible, constitutional? You’re not challenging those in any way?”

Mr. O’Neil: “We are not. [ …] ”

Mr. O’Neil later said: “I’d like to just focus, if I could, on the –on the point of the throw-back tax because I do think –I do think it is an answer to why –to the state’s concern about all of the potential loss of revenue that it may –may –may lose out on here.

“If and when this money is actually distributed to the beneficiary, if she is a North Carolina resident at that time, the state can get all of this income tax back by taxing the beneficiary.”

Alliance Trust Company of Nevada will continue to monitor this case very closely.

The Impact of New Federal Tax Laws on Existing Trusts and Estates

It’s Time to Revisit Old Trusts – New Federal Exemptions Could Give Wealthy Families a False Sense of Security

The end of 2017 saw significant changes in federal tax law when President Donald Trump signed the “Tax Cuts and Jobs Act.” The impact of the Act on estate planning could affect those with existing estates and those who might be considering drafting a trust in the future. While many changes will work to benefit estates, there are several things to be aware of and consider.

Changes to Exemption

Before the Tax Cuts and Jobs Act, federal exemptions for wealthy families were capped at 5 million dollars but has now been increased to $11.4 million per person (including inflation). This means that before 2018, married couples could have exemptions up to $23.36 million. Any gifts under these new exemptions can be made tax-free during your life and also upon your death as an inheritance.

Something to consider about the Tax Cuts and Jobs Act is its expiration date. The new regulations will expire at the end of 2025. They are then expected to revert to the previous amount of 5 million per person barring any changes from Congress. While past amounts will be adjusted for inflation, the new model for calculating inflation is expected to change and will yield a lower rate of inflation year-over-year.

However, estates valued at less than $5 million are less impacted by the new regulations.

How Federal Tax Reform Affects State Tax

Estate tax on the state level has remained unchanged. If your state assesses estate taxes, you will still be required to pay those taxes. The state of Nevada has some of the most favorable tax laws in the country and many people establish Nevada trusts to take advantage of them.

If you currently live in a state which assesses high taxes on estates or income produced by your estate, you may want to consider moving your trust to a state with no income tax, no estate tax, and favorable tax laws such as Nevada.

Some great news about exemption limits is the ability to gift more freely until 2025 when the limits expire. It will be easier to gift estate assets without incurring federal gift and estate taxes until that time. The state of Nevada has no gift tax, so staying under the federal cap is your only concern for assets established in Nevada.

Nevada does not have an inheritance tax either, but keep in mind that even if your state does not have an inheritance tax, if you gift assets to someone in a state which does, it’s possible for the beneficiary to get taxed on those assets.

What to Watch Out For

Higher exemptions have caused one big problem that could go undetected: accidental disinheritance. If you have an older trust that was written for a smaller tax exemption and your trust stipulates that the exempt amount of your estate should pass to your children and the rest to your spouse – you may accidentally leave up to $11.4 million to your children and nothing to your spouse depending on the size of your estate.

Learn more about Trust Decanting.

Regardless of estate size, it’s important to review your old trusts to make sure that the terms of that trust still make sense for your current life situation.

Does a Trust Still Make Sense in Light of New Federal Exemptions?

Some people may be compelled to review their old trusts and choose to allow their assets to pass into a “credit shelter” trust. This tactic does pass your income along to your spouse and children. However, families who use such trusts miss out on a huge tax break from stock and real estate assets.

Trusts also help shield assets from federal estate tax even with higher exemptions and allow more control over assets. Another thing to keep in mind as you choose whether or not to create a trust is that the higher exemptions put into place by President Trump will only last until 2025. It may be better to think of them as being artificially high.

Learn More About the Tax-Favored State of Nevada

You don’t have to live in Nevada to take advantage of its favorable tax and trust laws. By establishing your assets in the state and using a Nevada resident trustee, like Alliance Trust Company of Nevada.

There are more benefits than favorable tax law in the state of Nevada. Those who establish trusts in the state can also experience benefits like short seasoning periods, iron-clad asset protection laws, and the ability to develop dynasty trusts that last hundreds of years and more.

Contact Alliance Trust Company of Nevada to learn more about how you can make the most of higher federal exemptions and benefit from fewer state taxes.

Potential Upcoming High-Profile IPOs In Bay Area Make NINGs An Attractive Solution

Softening the Blow of California Income Taxes with a NING Trust

The New York Times recently published an article about how the California Bay Area is about to experience a huge financial shakeup. Several high-profile companies are about to go public including Uber, Lyft, Airbnb, and Pinterest. With what the NYT refers to as “IPO-palooza,” companies worth upwards of $200 billion will create millionaires overnight.

While this is great news for the newly minted millionaires, it could cause a strain on San Francisco’s economy, displacing many people from their homes and making the already expensive city even less affordable. Moreover, with the new State and Local Income Tax (SALT) deduction capping at $10,000, even the new wealthy Californians will be scrambling looking for ways to protect their assets from massive capital gains and income taxes.

With new money (and lots of it) in their bank accounts, this new generation of millionaires will be looking to buy homes, cars, boats, and more. But, hopefully, they will also be interested in investing and protecting their wealth. We’ve had a favorable economy for a while now, and a correction will inevitably come.

While a luxury or two is certainly well-deserved, ensuring that this hard earned financial windfall lasts for generations is also important. In order to grow and compound wealth, the new Bay Area wealthy might consider working around the state’s high-income tax rate by establishing an ING trust.

Should New Millionaires Establish California Trusts?

California has notoriously high taxes all around, but its state income tax can be a real burden, up to 13.3%. Often, wealthy California residents will establish trusts outside of the state of California to avoid these high taxes with some even physically moving their residences outside the state of California.

However, even moving out of California right before an income event may not even insulate a wealthy California resident from taxes. The state’s aggressive Franchise Tax Board has found ways to tax people regardless of their move. A newer approach is to create a Nevada Incomplete Non-Grantor Trust or NING. Moving a portion of assets as incomplete gifts to a no income tax state, like Nevada, will protect those assets from hefty taxes created by the new SALT cap.

NINGs Could be the Answer to California State Tax

New and established millionaires alike could benefit from establishing a NING trust in which the donor makes an incomplete gift to the trust and assigns an independent trustee. Alliance Trust Company of Nevada provides independent trustee services for many families establishing NING trusts.

By establishing an independent trustee the grantor is still involved, but not considered the owner. A NING trust allows any income or gains by the trust not to be taxed until it’s distributed, at which point the trustee may have moved out of California and can avoid income tax on these gains.

Deferring taxes over years creates a compounding effect that can yield high returns even when just working around state income tax. Utilizing a corporate trustee, such as Alliance Trust Company of Nevada, to administer an incomplete non-grantor trust (ING) in a state with no income tax is becoming a popular solution for wealthy entities in high-tax states.

Why Nevada?

The state of Nevada is one of a few states with no state income tax, but more than that, Nevada’s trust protection is considered to be the best in the country. With several cases which have set precedents in favor of protecting trusts, Nevada has proven to be more in favor of trust protection than any other state including protection from creditors and divorcing spouses.

You never have to live in Nevada as long as you maintain a Nevada trustee. Other benefits include a short seasoning period on trusts and no corporate income tax. You can see a full list of Nevada’s advantages over other states here.

Does the Benefit Outweigh the Risk?

There are quite a few hoops to jump through when establishing a NING, however, with an experienced trust attorney, this should not be a barrier. After establishing a NING, it may be that you will have to pay some California tax.

Alliance works with many attorneys specializing in NINGs. Architecting a NING that focuses on your individual situation and the specific assets being placed in the trust is crucial to meeting your objectives with a NING. We would be happy to refer you to an appropriate attorney.

ING trusts are still being tested in the courts of every state but New York, so there’s not certainty about how California will react yet. It does seem that the state will react with audits before their legislature.

So if you’re about to hit a financial windfall, the calculated risk of establishing a NING could pay off exponentially when it comes to income tax. In which case, the benefit would certainly outweigh the risk.

If you want to learn more about establishing a NING trust contact our experienced team for more information.

Asset Protection in Minnesota, a Breakfast Event

Why Are Asset Protection Trusts Popular in California but not Minnesota?

Alliance Trust Company of Nevada is partnering with BlackRock and Redden Law to host a Breakfast Event for a discussion on Asset Protection in Minnesota: From market to legal risks; Who is at risk and for how much?; Is it true that a creditor can seize my car for $4,600?; My IRA for $69,000?

Our expert panel will lead a lively discussion.

Learn more about Asset Protection Trusts in Nevada

Details:

Speakers

Brian Wevergergh – Market Leader, BlackRock

Michael Redden – Attorney, Redden Law

Greg Crawford – President, Alliance Trust Company of Nevada

Agenda

  • Market outlook and investment implications of balancing risk and reward – What can I do to protect myself?
  • What other risks are impacting my wealth – Is it true that a creditor can seize my brand-new Suburban for $4,600? What about my IRA or my house?
  • What can I do to protect myself and my family?
    • Protecting Wealth: Different strategies to manage risk – from LLCs to Asset Protection Trusts
    • Asset Protection Trust basics: Why, What, Who, and How
    • Case study
    • Why are Asset Protection Trusts popular in California but not Minnesota?

Who Should Attend:

  • Attorneys
  • Financial Advisors
  • Wealth Managers
  • Small Business Owners / Doctors / Dentists

Speaker Bios

Brian Weverbergh

Brian Weverbergh, CIMA® is a Market Leader with BlackRock. He serves financial advisors in the states of Minnesota, North Dakota and South Dakota. Prior to joining the firm in 2016, he was a Regional Vice President for Allianz Global Investors based in Minneapolis, MN.

Mr. Weverbergh earned the Certified Investment Management Analyst (CIMA®) designation through the Investment Management Consultants Association in conjunction with the Yale School of Management. He earned a B.S. in Business Administration with a concentration in Finance from Ithaca College.

Michael Redden

Michael Redden is a veteran of the United States Air Force.  He served as an Intelligence Analyst with the 31 FW in Aviano, Italy.  After the Air Force, Michael returned to Minnesota where he attended law school at Hamline University School of Law.  Michael lives in New Hope with his wife and four sons while coaching youth wrestling. In the past, Michael worked at Prudential Insurance Company of America where he helped clients of the company protect their assets.  While at Prudential, Michael was a registered representative of Pruco Securities and held his Series 6 and Series 63 securities designations.

Michael has a passion for helping licensed professionals preserve their wealth for the next generation. Since tort reform is unlikely, it is more important than ever to have a plan to protect your wealth from lawsuits. He has also served as an independent Trustee/fiduciary in the past.  Michael’s practice has a special focus on Integrated Estate Planning. He combines effective Asset Protection techniques with other Estate Planning strategies in order to protect the assets of individuals and businesses from lawsuits.

Greg Crawford

As president of Alliance Trust Company of Nevada, Gregory E. Crawford develops strategy, drives growth, and oversees operations. For two decades, Greg has designed and implemented asset management and asset protection plans for multi-generational families in the United States and abroad for some of the largest institutions in the world. This work involves comprehensive financial planning, portfolio design, business entity structure strategy, and sophisticated estate planning techniques.

Greg is a regular speaker on the benefits and advantages of Nevada trust situs at law school conferences around the country. A native of Menlo Park, California, Greg holds a Bachelor of Arts from the University of California, Davis, and a Master of Health Administration from the University of Minnesota. Greg is certified in financial planning by Boston University and is a Registered Trust and Estate Practitioner and a Certified Financial Planner.

Mr. Crawford has regularly been quoted in publications such as The Wall Street Journal, The New York Times, The Financial Times of London, and has appeared as an on-air expert on CNBC, Bloomberg and ABC World News Tonight.

Greg has lived in Reno since 2000 and is married with two children. He is a member of Our Lady of the Snows Catholic Church, the Reno Angels Investor Group, the Entrepreneur’s Organization, Reno Sunrise Rotary, and the Reno Tahoe Winter Games Coalition.

Save the Date:

  • March 12, 2019 at 7:30-9:00am
  • Location – Seven Steakhouse, 700 Hennepin Ave, Minneapolis, MN 55403
  • Schedule: 7:30-8:00am registration and coffee, 8-9am program
  • Cost: Free

Can Incomplete Non-Grantor Trusts (INGs) Really Save Wealthy Californians Money on SALT?

A Proactive Approach to Wealth Management May provide Families Significant Savings on State and Local Income Tax (SALT)

Taxpayers could be scrambling after the Federal Tax Reform passed at the end of 2018 capping state and local income tax (SALT) deductions at $10,000. For many wealthy families in high-tax states, this deduction will only cover property tax and won’t touch capital gain income or other investment income.

While California is attempting to pass the Protect California Taxpayers Act which allows taxpayers to deduct some taxes as “charitable contributions,” for many the bill feels like a workaround or even tax evasion, and it’s unclear whether the IRS will allow such a bill to pass.

Rather than waiting for legislation to pass that is more protective of taxpayers, many residents from states like California are considering leaving the state or taking other measures to protect their wealth.

Moving out-of-state is not a feasible option for many. However, moving assets out of a high-tax state may be an ideal solution.

What are My Options?

Traditionally, grantors gift away income-generating investments to beneficiaries who live in tax-favored states. However, these gifts often incur federal gift tax or utilize some of the grantor’s exclusion for a gift and estate tax.

A newer option is the NING trust or Nevada Incomplete Gift Non-Grantor Trust. There are several tax-sheltered states in the U.S., but only a few allow Incomplete Gift Non-Grantor Trusts and the most tax-favored state for such a trust is Nevada. The NING allows a trust to avoid taxation by the grantor’s home state until assets are distributed, or, rather, the gift is complete.

Why Choose a NING?

By transferring assets into a NING, the assets become a separate taxpayer receiving the tax benefits of Nevada. Because transfers are not completed gifts, there is no federal gift tax exclusion.

For those who live in high-income tax states, such as California, establishing a NING to transfer some of the tax burdens to Nevada allows them to take advantage of Nevada’s no income tax benefit.

Additionally, Nevada has the most robust creditor protection and protection as its considered a “spendthrift trust” in Nevada. Nevada also has tested protection from divorcing spouses which has held up in Nevada Supreme Court with Klabacka v. Nelson.

The Components of a NING Trust

An ING trust only works in a state with no state income tax. Otherwise, a tax will apply to the trust. Nevada is the preferred state for an ING trust as it carries many other protections and benefits to grantors and beneficiaries.

ING trusts cannot be grantor trusts under the income tax laws of the grantor’s state of residence. Only states that allow self-settled spendthrift trusts (asset protection trusts) can form non-grantor trusts enabling the settlor to be a beneficiary, such as Nevada.

The incomplete gift portion of the ING trust is critical to ensure that the contributions to the trust are not treated as a gift and subject to federal gift tax. It’s essential for the settlor to have lifetime power of appointment and post-death power – which the ING trust allows.

NING trusts will be subject to federal estate tax when the settlor dies, however, if the estate is not large enough to trigger federal estate tax, this is not an issue.

Who Should Consider Establishing a NING

Although a NING has many benefits, the benefits may not be for every grantor. Here are some of the criteria which would make someone a good candidate for a NING trust.

  • Grantor lives in a high-income state – such as California.
  • Grantor carries intangible assets with substantial tax exposure.
  • Grantors in the highest federal tax bracket who would remain in that bracket after transferring assets to a NING.

Should YOU Establish a NING?

NING trusts can be an excellent option for those looking to preserve wealth and protect it from their state’s high tax rates. Since changes to SALT are recent, there are still some questions about how the IRS will respond to attempts to shield wealth from taxes. However, the NING appears to be the best option to do so.

It’s important to work with a trusted advisory team or trust company that is familiar with Nevada Tax Law and NINGs to ensure it’s the right choice for your family and that you’re gaining the most benefit possible.

At Alliance Trust Company, we’re experts in Nevada Trust Law and have a network of attorneys specializing in NINGs. We are available to walk you through your particular situation regarding NINGs. Contact us to learn more about preserving your wealth in the state of Nevada.

Nevada Trust and Estate Planning Advantages

Nevada’s Beneficial Trust Laws Set it Apart and Provide Strong but Flexible Protection

When it comes to asset protection and managing estates, Nevada stands alone paving the way for other states. Recent cases, such as Klabacka v Nelson, have set Nevada apart from other states with similarly beneficial trust laws and allowing Nevada to emerge with the most iron-clad wealth protection available in the U.S.

Nevada should be a serious contender when considering both wealth management and asset protection whether you are a U.S. or non-U.S. citizen. Nevada boasts additional benefits such as Dynasty trust provisions lasting up to 365 years and Domestic Asset Protection Trusts (DAPT’s), also known as Self-Settled Spendthrift Trusts (SSST), allowing you to protect your assets and wealth more than any other state.

With the addition of an abbreviated statute of limitations until assets transfer to an SSST and superior protection from creditors, which is unique to Nevada, the advantages of establishing your wealth and assets in the state of Nevada deserve a deeper look.

Nevada DAPT and DAPT Hybrid

Domestic Asset Protection Trusts (DAPT)

A relatively new type of trust, the DAPT is different because it allows the settlor to also be the beneficiary. This is beneficial for planning and allows for much more flexibility. These trusts also play a strategic role in income and estate taxes.

Few states permit DAPT’s and even fewer have as short of a seasoning period as Nevada (two years). To receive the benefits of a DAPT in Nevada, you must establish the trust in Nevada; this is possible without relocation if you utilize a corporate trustee such as Alliance Trust.

The Nevada DAPT is irrevocable. However, there is quite a bit of flexibility within a Nevada DAPT.

Hybrid DAPT

Most people believe that the Nevada DAPT will hold in court though it has never entirely gone through the court system. Several Nevada cases prove that Nevada honors DAPTs, but if you desire extra caution, a Hybrid DAPT is a simple option that reduces the risk of creditor access to assets and wealth.

In a Hybrid DAPT, you do not initially add the settlor as a beneficiary, but you can modify this later. This arrangement limits the uncertainty of a traditional DAPT.

Flexible Decanting

While the term “irrevocable trust” sounds rigid and unchangeable, the process of decanting is a popular way to change the terms of the trust and increase flexibility.

Trust decanting allows you to move assets from one trust to another and essentially modernize the trust without court approval or notice to beneficiaries.

Often, terms of a trust need to be revised to reflect the circumstances of the family or if the trustee has changed their mind about the old terms.

Learn more about Nevada Trust Decanting here.

Save Big on State Income Tax

Nevada is one of a few states with no state income tax, in theory, establishing your trust in the state of Nevada should allow you to save on state income tax after the two-year seasoning period. However, there are steps you need to take to ensure this transition isn’t viewed as tax evasion.

The most popular way to save on taxes and establish your trust in Nevada is by using a Nevada Incomplete Gift Non-Grantor Trust (NING). NINGs also help with estate planning and shield your trust from creditors. The NING trust has held up in court unlike its counterpart the DING (Deleware Incomplete Non-Grantor Trust) and is the preferable choice for wealth and asset management.

Learn more about saving on state income tax using a NING here.

More Nevada Tax Advantages

State income tax savings are not the only benefit of establishing your trust in Nevada, Nevada also protects from federal or state transfer tax, and for Nevada Dynasty Trusts, the state shields assets from income tax through the 365 year period.

Additionally, Nevada does not tax trust income which is distributed to beneficiaries nor assess tax on the value of intangible personal property within a trust.

Nevada’s tax advantages keep slow erosion of assets and wealth via taxes from eating into the trust.

Protection from Creditors

In the case of Klabacka v Nelson, 133 Nev. Adv. Op. (May25, 2017): Nevada DAPT Protects Against Spousal/Child Support Claims, a divorcing spouse attempted to tap trusts and receive access to assets. The Klabacka v Nelson case took place in Nevada, and Nevada’s courts protected the trust, keeping the divorcing spouse from gaining access to the trust.

Nevada is the only state with creditor protection precedents set firmly in favor of trusts.

Nevada Dynasty Trusts

Nevada Dynasty Trusts can last up to 365 years and allow generation-skipping-transfer tax exemption to help limit estate tax liabilities, sometimes eliminating them.

With a Nevada Dynasty Trust, your assets are subject to tax (or lifetime exemption) once upon transfer and then not again at the estate level allowing many generations to enjoy gifted assets.

Domestic and international families alike can enjoy the benefits of Nevada Dynasty Trusts and favorable estate tax laws for an extended period of time.

Take Advantage of Nevada’s Trust Laws

If you’re considering establishing a trust or estate in Nevada, it’s highly advisable to speak with a professional who understands Nevada’s Trust Laws and statutes.

Alliance Trust Company of Nevada works with a variety of professionals around the world to provide flexible trustee services with the benefit of Nevada trust situs.

Contact us to understand further how establishing your trust in Nevada will benefit your family and how you may take advantage of some of the best trust laws in the world.

U.S. Supreme Court Looking at Two Cases Relating to State Taxation of Trusts

Minnesota and North Carolina appeal to the Supreme Court in Trust Taxation Cases

The United States Supreme Court will review two petitions for a writ of certiorari from the states of North Carolina and Minnesota. Both states lost cases in their respective State Supreme Courts where the state laws were deemed in violation of the United States Constitution under Due Process Clause. Both states have appealed to the U.S. Supreme court for review.

A Breakdown of the Original Cases

Case 1: North Carolina

The Case: North Carolina Department of Revenue, Petitioner v. The Kimberly Rice Kaestner 1992 Family Trust Current North Carolina Practice: North Carolina taxes trusts based on beneficiary residency. The Original Conclusion: “The North Carolina Supreme Court concluded that a trust and its beneficiaries are legally separate – in other words, that beneficiaries are outsiders to a trust. On that basis, that majority (of the NC Supreme Court) expressly disregarded the trust beneficiaries’ in-state residency and other contacts with North Carolina. That analysis led the majority to conclude that the trust at issue lacked a constitutionally sufficient connection with the state.”

Click here to view the case filings.

Case 2: Minnesota

The Case: Cynthia Bauerly, Commissioner, Minnesota Department of Revenue, Petitioner v. William Fielding, Trustee of the Reid and Ann MacDonald Irrevocable GST Trust for Maria V. Macdonald, et al. Current Minnesota Practice: Minnesota taxes trusts based on the residency of the grantor when the trust becomes irrevocable. The Original Conclusion: “The grantor’s connections to Minnesota are not relevant to the relationship between the trust’s income that Minnesota seeks to tax and the protection and benefits Minnesota provided to the trusts’ activities that generated that income. The relevant connections are Minnesota’s connection to the trustee, not the connection to the grantor who established the trust years earlier. A trust is its own legal entity, with a legal existence that is separate from the grantor or the beneficiary. Nor did the court find the grantor’s decision to use a Minnesota law firm to draft the trust documents to be relevant. Thus, the grantor Reid MacDonald is not the taxpayer, the trusts are.”

Click here to view the case filings.

What Are the States Asking For?

Both states believe they have the right to tax the trusts under due process clause, given legal abstractions of trusts. The Minnesota Supreme Court concluded that the trust is separate from the Grantor, but the connections between Grantor and the state of Minnesota were not sufficient to tax the trust. Similarly, the North Carolina Supreme Court ruled that a beneficiary and a trust are legally separate and the connection between the beneficiary and the state of North Carolina are not enough to tax the trust.

The question presented by the State of Minnesota: Does the Due Process Clause prohibit states from imposing income taxes on statutory “resident trusts” which have significant additional contacts with the state, but are administered by an out-of-state trustee? The question presented by the State of North Carolina: Does the Due Process Clause prohibit states from taxing trusts based on trust beneficiaries’ in-state residency?

A Constitutional Reminder: The Due Process Clause of the Fourteenth Amendment provides that [n]o state shall…deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV § 1.)

What Lower Courts Had to Say in Regard to Their Decisions

From Minnesota Writ: “This Court has not spoken on the issue in decades, and its precedents point in opposite directions. As a consequence, state appellate courts are deeply divided on the correct answer. Some state appellate courts have held that a state may impose an income tax on a trust even when the trustee resides out-of-state, so long as the grantor resided in-state when the trust became irrevocable. Other courts have required, on top of grantor residence, that the trust have some additional contacts with the state during the tax year. One other state high court has held that a state may tax a trust as a resident if a beneficiary of the trust resided in the state during the tax year.”

From North Carolina Writ:

“This case asks whether the Due Process Clause prohibits states from taxing trusts based on trust beneficiaries’ in-state residency—a question on which nine state courts have split. Because of the Tax Injunction Act, this federal constitutional question is usually litigated in state courts. State courts are divided in their answers to this question, however, because they lack modern guidance from this Court.”

“With that decision, North Carolina joined the ranks of eight other states that have reached conflicting decisions on the question presented here. Five states have concluded that the Due Process Clause forbids states from taxing trusts based on trust beneficiaries’ in-state residency. Four states have concluded the opposite.”

The United States Supreme Court has not ruled on trust taxation since 1947 (Greenough v. Newport 331 U.S. 486 (1947)) and states say that since state courts are split regarding their rulings of trust taxation that a review by the Supreme Court is needed.

Where Concluding States Land

Four state courts have concluded that the Due Process Clause allows states to tax trusts based on trust beneficiaries’ in-state residency:

  • California in McCulloch v. Franchise Tax Board, 390 P.2d 412 (Cal. 1964)
  • Missouri in Westfall v. Director of Revenue, 812 S.W.2d 513 (Mo. 1991)
  • Connecticut in Chase Manhattan Bank v. Gavin, 733 A.2d 782, 802 (Conn. 1999)
  • Illinois in Linn v. Department of Revenue, 2 N.E. 3d 1203, 1209 (Ill. App. Ct. 2013) – but note that Linn ultimately held that the state could not tax a trust merely because the trust’s settlor had been an Illinois resident.

 

Five states ruled against taxation of trusts:

  • New York in Mercantile-Safe Deposit & Trust Co. v. Murphy, 203 N.E.2d 490, 491 (N.Y. 1964)
  • New Jersey in Potter v. Taxation Division Director, 5 N.J. Tax 399, 405 (N.J. Tax Ct. 1983)
  • Michigan in Blue v. Department of Treasury, 462 N.W.2d 762, 764 (Mich. Ct. App. 1990)
  • North Carolina in this current case: North Carolina Department of Revenue, Petitioner v. The Kimberly Rice Kaestner 1992 Family Trust
  • Minnesota in this current case: Cynthia Bauerly, Commissioner, Minnesota Department of Revenue, Petitioner v. William Fielding, Trustee of the Reid and Ann MacDonald Irrevocable GST Trust for Maria V. Macdonald, et al. Note that Minnesota rejected both the residency of Grantor and Beneficiary.)

What is the Impact of the Recent Wayfair Case?

In South Dakota v. Wayfair the United States Supreme Court ruled that states may impose sales tax even if the seller does not have a physical presence in the state.

This case could have an impact on future Supreme Court decisions regarding taxation. Although South Dakota’s decision is not an exact template for other states, it could influence how they craft their laws.

Timing

In the North Carolina case, the writ was filed on October 9th, 2018. The taxpayer filed their brief in opposition on November 30th.

The Minnesota case writ was filed on November 15th and docketed on November 21st. The taxpayers have until December 21st to file their response.

Will the Supreme Court Take Both Cases, or One?

Some Potential Outcomes: Ruling for the states – A ruling for the states would have a significant negative impact on out-of-state trust planning and could potentially send grantors to offshore jurisdictions.

Ruling for taxpayers – This will have a significant impact on the 22 states that still impose taxes on trusts and could potentially be a clear law-of-the-land in which all states would need to amend their tax code to comply.

Both cases declined – This is an implicit win for the taxpayers, and would lead to further haggling at the state level, both in courts as well as legislation.

Because Minnesota’s Fielding case includes both grantor and beneficiary issues, the Supreme Court hearing this case would set more comprehensive precedents regarding the taxation of trusts. With the North Carolina Kaestner case, the only issue at hand is the beneficiary’s residence.

There are still a lot of questions and unknowns about the impact of the court’s decisions and a lot of speculation. Either way, there are sure to be some interesting changes ahead.

Who said trust laws had to be boring?

Understanding Nevada Asset Protection Trusts

Why Nevada’s Asset Protection Trust Laws Keep Your Wealth Safer Than Any Other State

The state of Nevada has dominated the asset protection space and positioned itself as the most beneficial situs to establish an asset protection trust.

Precedent-setting cases and favorable trust laws have launched Nevada to the forefront of the estate planning industry and allowing trustees and estate planners flexibility, privacy, and the power to protect wealth and assets more securely than any other state.

The Benefits of Nevada Law

Nevada’s trust advantages continue to grow and have edged out other states with similar trust provisions. Here are some of the ways that Nevada takes asset protection measures further.

Nevada’s advantages include:

Nevada carries no state or corporate income tax.

Federal taxes take a significant chunk out of trusts and returns made on assets so establishing a trust in a state with no income tax can help preserve a large portion of wealth.

Nevada carries no state or corporate income tax, protecting your wealth from additional taxes and allowing it more unhindered growth.

Nevada carries a 24-month statute of limitations or “seasoning period.”

Every state carries a different statute of limitations ranging from 1.5 years to 5 years. While Nevada carries a two-year statute, the language in the Nevada code reinforces that trusts are actually still protected during the two-year seasoning period.

Zero exception creditors, including divorcing spouses.

In the recent case of Klabacka vs. Nelson, Nevada sets a new precedent that its asset protection laws are the most robust in the nation.

In a similar case in Delaware, the courts sided with the divorcing spouse, weakening the state’s asset protection laws.

The grantor is able to name an independent financial advisor to manage trust funds.

Anyone can take advantage of Nevada’s favorable trust laws as grantors can name a Nevada resident or a Nevada trust company as trustee or co-trustee, this includes international families and businesses as well as domestic families.

Nevada Asset Protection Trusts are irrevocable but flexible.

In Nevada, the trust settlor is allowed to make decisions regarding powers related to managing the Nevada Domestic Asset Protection Trust (NDAPT). Though the term irrevocable sounds final, in Nevada, there is actually a great deal of flexibility in these trusts.

What is a Nevada Asset Protection Trust?

Simply put, an asset protection trust limits creditor access to the value of the beneficiary’s interest in the trust. The asset protection trust protects the value of the assets and legally protects them from lawsuits and other claims.

Nevada Asset Protection Trusts have proven their strength, holding up in court most recently in the case of Klabacka v Nelson, 133 Nev. Adv. Op. (May25, 2017): Nevada DAPT Protects Against Spousal/Child Support Claims. In this case, a divorcing spouse sought access to her ex-husbands self-settled spendthrift trust and the courts sided with the trust. All alimony, child support, and other claims on the trust had to be taken from liquid assets outside of the trust.

The decision in the Klabacka case reaffirmed Nevada’s asset protection strength as other states are scrambling to keep up. While other states may defer to Nevada’s ruling in the Klabacka case, that is far from a guarantee.

Nevada Residency is not required.

If your trust is established in Nevada you may live anywhere in the world and take advantage of Nevada’s many trust benefits. Nevada also fully protects personal privacy.

Alliance Trust Company of Nevada helps people take full advantage of Nevada’s trust laws and may serve as independent trustee if the grantor is out of state. We’re available to answer any questions regarding Nevada Asset Protection.

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Let our experienced team help you with your trust needs