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Changing the Situs of a Trust

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Robert A. Hendrickson, Neal R. Silverman


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This eminently practical deskbook will help you achieve considerable savings of income, property, gift and death taxes—even without an actual change of situs. Changing the Situs of a Trust includes suggested clauses for both inter vivos and testamentary instruments and examines court reactions to a petition for change when the trust instrument does not specifically provide for one. In addition, You'll find the full text of every state statute regarding situs changes, as well as an analysis of the key provisions of leading states and the Uniform Probate Code, the Uniform Trust Code, and the revision of the Uniform Partnership Act (including provisions governing applicable LLPs).

This thorough volume also features extensive coverage of foreign and domestic asset-protection trusts, the international governance of trusts, U.S. tax treatment of transfers to foreign trusts and recognition of gains, departures from the traditional New York view of when a situs may be changed, the Alaska Trust, and revisions to the California Probate Code.

Book #00573; looseleaf, one volume, 758 pages; published in 1982, updated as needed.
ISBN: 978-1-58852-014-2


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 758
  • ISBN: 978-1-58852-014-2
  • Pub#/SKU#: 00573
  • Volume(s): 1

Author Image
  • Robert A. Hendrickson

Mr. Hendrickson (deceased) was of counsel to the firm of Eaton & Van Winkle in New York.



Author Image
  • Neal R. Silverman

Mr. Silverman practices law in New York.


CHAPTER 1
Non-Tax and Tax Considerations

§ 1.01 Concept of Trust Situs—Definitions
§ 1.02 Change of Trust Situs
§ 1.03 Conflict of Laws
§ 1.04 Change of Situs of a Trust—In General
§ 1.05 Non-Tax Reasons for Change of Situs
§ 1.06 Tax Reasons for Change of Situs
§ 1.07 Risk of Loss of Continuity
§ 1.08 Tax-Saving Change of Situs
[1] New York as a “Tax Haven”
[2] Change of Situs—New York to Other Jurisdictions
§ 1.09 Recognition of Gain on Certain Transfers to Foreign Trusts
[1] IRC Section 684
[2] Determining Residency of Trust

CHAPTER 1A
Legal Problems of Multi-Jurisdictional Trusts

§ 1A-01In General
§ 1A-02Legal Principles Involving Devolution of Trust Property
[1] Situs Rules for Determining Validity of the Trust
[2] Inter Vivos Trusts
[3] Pour-Overs
[4] Validity of the Trust as Affected by Situs of Trust Property
[5] Impact of the Uniform Probate Code
[6] Effect of the Exercise of Power of Appointment on Validity of the Trust
§ 1A.03 The Law Governing Interpretation of Trusts
[1] General Aspects of Interpretation
[2] The Legal Effect of a Trust When Settlor Designates Which Law Is to Govern
[3] The Legal Effect of Trust Provisions that Conflict with Testamentary Provisions
§ 1A.04 Rules Governing Rights of a Surviving Spouse
§ 1A.05 Non-Tax Reasons for Change of Situs
§ 1A.06 Rules Governing Rights of Creditors
§ 1A.07 Rules for Qualifying Foreign Trustees
[1] Trusts of Movables
[2] Trusts of Real Estate
§ 1A.08 Conclusions

CHAPTER 2
Change of Situs When Statute and Trust Instrument Are Silent: Decisional Law

§ 2.01 Introduction
§ 2.02 The New York Decisions
[1] Cases Allowing Change
[2] Cases Denying Change
[3] Change of Situs to New York from Another Jurisdiction
§ 2.03 Connecticut
§ 2.04 New Jersey
§ 2.05 Pennsylvania
[1] Cases Allowing Change
[2] Cases Denying Change
§ 2.06 England

CHAPTER 3
Change of Situs States, the Uniform Probate Code, and the Uniform Trust Code

§ 3.01 In General
§ 3.02 New York Statutes
§ 3.03 Choice of Law Provisions of Other States
§ 3.04 An Introduction to the Uniform Probate Code
§ 3.05 Uniform Probate Code
§ 3.06 Pennsylvania Statutes
§ 3.07 California Statutes
§ 3.08 Other State Statutes
§ 3.09 Uniform Trust Code
[1] General Provisions and Definitions
[2] Modification and Termination of a Trust

CHAPTER 4
Eligibility of Out-of-State and Foreign Trustees

§ 4.01 Introduction
§ 4.02 Eligibility of Trustees
§ 4.03 Avoiding Restrictions on Change of Situs
§ 4.04 Removal of Trust from a Non-United States Jurisdiction to a United States Jurisdiction
[1] In General
[2] Revenue Ruling 91-6
§ 4.05 Terminating and Reconstructing the Trust
§ 4.06 Avoidance of Court Intervention

CHAPTER 5
Discontinuity: When Change of Situs May be Deemed a Termination

§ 5.01 Introduction—Tax Consequences of Changing Situs
§ 5.02 Preserving Trust Continuity by the Substitution of a New Trustee
§ 5.03 Change of Situs by Termination of Old Trust Followed by Reconstitution in a New Trust
§ 5.04 The Old Trust Clones a New Trust
§ 5.05 Change of Situs by Decanting
§ 5.06 Distributions of Income After Repatriation
§ 5.07 Grantor Trust Treatment
§ 5.08 United States Gift and Estate Taxes
§ 5.09 Generation-Skipping Transfer Tax

CHAPTER 6
The Impact of State Income and Property Taxes on Change of Situs of a Trust

§ 6.01 Introduction
§ 6.02 Former Situs State Tax Claim Barred
§ 6.03 New York as a Tax Haven
§ 6.04 Multistate Income Taxation

CHAPTER 7
The Impact of State Gift and Death Taxes on the Change of Situs of a Trust

§ 7.01 Introduction
§ 7.02 Differing State Law Treatments of Beneficiaries’ Interests in Trusts After Change of Situs
§ 7.03 State Gift Taxes
§ 7.04 State Death Taxes
§ 7.05 Double Domicile
§ 7.06 Taxable Situs of Assets
§ 7.07 Apportionment of State and Federal Death Taxes to Trusts Under State Statutes

CHAPTER 8
Change of Tax Impacts Without Changing Situs

§ 8.01 Introduction
§ 8.02 Tax Exempt Bonds
§ 8.03 Alteration of Death Tax Situs

CHAPTER 9
Change of Situs Clauses for Wills

§ 9.01 Introduction
§ 9.02 Testamentary Trusts
§ 9.03 Form of Change of Situs Clause for Wills
§ 9.04 Forms—Proceeding to Change Situs of Testamentary Trusts

CHAPTER 10
Change of Situs Clauses for Inter Vivos Trusts

§ 10.01 Introduction
§ 10.02 Post-Change Law Where Instrument Is Silent
§ 10.03 Accounting and Commissions
§ 10.04 Clauses for a Foreign Trust
§ 10.05 Identifying the Beneficiary
§ 10.06 Form—Change of Situs Clause for Inter Vivos Trust

CHAPTER 11
The Recognition of Trusts in Non-Trust Jurisdictions

§ 11.01 Introduction
§ 11.02 Non-Recognition of Trusts in Civil Law Jurisdictions
§ 11.03 The Recognition of Trusts in Civil Law Jurisdiction
§ 11.04 Common Law Trusts in Civil Law Courts
§ 11.05 Trust-Like Property Arrangements in Non-Trust Jurisdictions
§ 11.06 Statutory Recognition of Trusts in Non-Trust Jurisdictions
§ 11.07 Recognition of the Common Law Trust in International Financing
§ 11.08 Recognition of the Common Law Trust in its Use by International Organizations
§ 11.09 International Action for International Recognition of the Common Law Trust
[1] Report on Trusts and Analogous Institutions
[2] What a Trust Is; What it Is Not—Hague Conference Views
[3] The Convention on the Law Applicable to Trusts and on Their Recognition
[4] Cayman Islands Trusts (Foreign Element) 1987 Law—A Response to the Convention on the Law Applicable to Trusts and on Their Recognition
§ 11.10 The Creation of a Common Law Trust
by a Domiciliary of a Civil Law Jurisdiction

CHAPTER 11A
Foreign Trusts: U.S. and Foreign Beneficiaries

§ 11A.01 Introduction
§ 11A.02 Reporting Requirements—Beneficiaries of Foreign Trusts
§ 11A.03 Power of Creator to Control Beneficial Enjoyment
§ 11A.04 Foreign Trusts—U.S. Reporting Requirements
§ 11A.05 Evenhanded Treatment of U.S. and Foreign Beneficiaries
§ 11A.06 Determining the Proper Jurisdiction
§ 11A.07 Unitary Foreign Trusts—Differing Needs of Beneficiaries
§ 11A.08 Sample Documents on Division of Cayman Islands Trust
§ 11A.09 Documents Dealing with Transfer of Trust from Hong Kong to the United States

CHAPTER 12
Asset Protection Trusts for Foreign and U.S. Persons

§ 12.01 Introduction
[1] Background
[2] A Typical Fact Pattern
§ 12.02 A Summary of Possible Solutions
§ 12.03 The Act of State Doctrine
§ 12.03A Protection of Foreign Investor’s UnitedStates Assets From Acts of the United States Government
§ 12.04 Corporations
[1] Transfer Statutes
[2] Removal of Assets from the Corporation
§ 12.05 The Change of Situs as a Protective Device
[1] The Triggering Events
[2] Discretionary Change of Situs or Trustee or Both
[3] The Transferee Jurisdiction
[4] Governing Law
[5] A New Or Successor Trustee
[6] Terminating the Trust
[7] Decanting
[8] Control Over Trust Assets After Transfer
[9] Pour-Over Devices
[10] Reversion
[11] Standby Arrangements
[12] Technical Considerations
§ 12.06 Management Committee
§ 12.07 Corporate vs. Individual Trustee
§ 12.08 Transatlantic Trust Corporation
§ 12.09 Asset Protection Trusts for U.S. Persons
[1] In General
[2] Use of APTs by U.S. Persons
[3] Fraudulent Transfer Considerations
[4] General Operation of the APT
[5] Mechanism of the APT
§ 12.10 Domestic Asset Protection Trusts or Self-Settled Spendthrift Trusts

APPENDICES
Table of Cases
Index