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Trusts, Estates and Tax Group
Publication 
December 2010
The Trustee's Role in Directed Trusts - TRUSTS & ESTATES magazine
(PDF 161KB)
Morris Nichols' Todd Flubacher and J.P. Morgan Trust Company of Delaware's David A. Diamond, authored The Trustee's Role in Directed Trusts featured in the December 2010 edition of TRUSTS & ESTATES magazine. The article examines how trust law has evolved towards bifurcation of trustee functions between the trustee and a separate advisor. (more)
Client Update 
December 2010
Chancery Court Holds Non-fiduciary Jointly and Severally Liable For Trustee's
Breach (PDF 762 KB)
The Delaware Court of Chancery evaluated a trustee's decision to borrow against a life insurance policy that was the principle asset of an irrevocable trust and to extend a corresponding loan to the couple who funded the trust. The Court found that the trustee acted to please the couple rather than to benefit the trustee, breaching his fiduciary duty of loyalty. The Court also held that the trustee's legal power to make the loan did not excuse his inequitable conduct, nor could the advice the trustee obtained from counsel serve as a dispositive defense. (more)
Client Update
October 2010
In the Matter of Trust for Grandchildren of Wilbert L. and Genevieve W. Gore
DATED APRIL 14, 1972. C.A No. 1165-VCN, Noble (Del. Ch. Sept 1, 2010)
(Mem. Op.) (PDF 723 KB)
A recent Delaware Court of Chancery opinion used the doctrine of unclean hands to bar a trust beneficiary from claiming personal economic interest in a trust...(more)
Client Update
October 2010
New Standing Order of the Delaware Court of Chancery: Procedural Changes
in Consent Petitions for Modifications of Trusts (PDF 676 KB)
The Delaware Court of Chancery has instituted new requirements regarding petitions for the modifications of trusts, to be effective immediately. In its standing order of October 7, 2010 (the "Standing Order"), the Court altered...(more)
Client Update
September 2010
Trust Act 2010 Changes to Title 12 of the Delaware Code - Material Changes
to Title 12 of the Delaware Code (PDF 795 KB)
Delaware Governor Jack Markell signed into law Trust Act 2010 and a bill that addresses formula clauses in certain wills and trusts of persons dying during 2010 as well as Delaware's new Durable Personal Powers of Attorney Act that completely re-writes Delaware's law governing durable powers of attorney used for personal, non-commercial purposes...(more)
Publication
August 2010
Delaware Asset Protection Trusts and Creditors' Rights - Estate Planning
Magazine (PDF 2 MB)
Todd Flubacher and Randy Herndon authored Delaware Asset Protection Trusts and Creditors' Rights featured in the September 2010 edition of Estate Planning magazine that answers the question: How is a settlor who creates a trust in which he or she retains the right to receive distributions better off creating the trust as a Delaware asset protection trust (DAPT) than as a trust in another jurisdiction that does not provide creditor protection to a settlor?... (more)
Client Update
August 2010
Stone v. Sant, C.A. 890-VCN, V. C. Noble (Del. Ch. July 2, 2010)(Mem. Op.)
(PDF 322 KB)
The recent Delaware Court of Chancery opinion in Stone v Sant raises several issues of importance to estate planners and fiduciaries; notable in its consideration of the efficacy of... (more)
Client Update
June 2010
N.K.S. Distributors Distributors, Inc. v. Christopher J. Tigani, et al. (PDF 338
KB)
A recent Delaware Court of Chancery order applied the attorney/client privilege to communications between a trustee and his counsel to bar a beneficiary of the trust from accessing those communications. (more)
Speaking Material 
May 20, 2010
Taking Advantage of the 'Delaware Advantage': Why and How to Settle Trusts
in Delaware and Move Trusts to Delaware - Chicago Estate Planning Council in
Chicago, Illinois (PDF 358 KB)
UPDATED FOR 2010 - How to take advantage of Delaware's directed trust statute and other attractive Delaware statutes, Delaware creditor protections, Delaware dynasty trusts, Delaware Chancery Court supervision, and considerations when changing a trust situs to Delaware... (more)
Publication
April 2010
Morris Nichols' Delaware Trust Law Companion 2009-2010
Morris Nichols' Trusts, Estates and Tax Group is proud to introduce the enclosed Morris Nichols' Delaware Trust Law Companion 2009-2010, a convenient mini-compilation of the most useful reference materials specific to Delaware trust law practice. Until now, these materials have not been available in a single source... (more)
Client Update
April 2010
Delaware Virtual Representation: Increasing Efficiency in Trust Matters (PDF
336 KB)
Use of the Virtual Representation Statute can eliminate considerable time and expenses that would otherwise be incurred in a judicial proceeding, or non-judicial matter, while still insuring that all interests in a proposed action are adequately represented. Especially with recent additions... (more)
Publication
March 7, 2010
Planning to Avoid Pitfalls - Asset Protection Trusts Thirteen Years
After Enactment - Delaware Banker Magazine (PDF 496 KB)
The featured article not only examines amendments to the Delaware Qualified Dispositions In Trust Act in the thirteen years since its enactment as it relates to establishing a so-called Delaware asset protection trust ("DAPT") but also focuses on... (more)
Client Update
September 2009
Merrill Lynch Trust Company, FSB, v. Mary F.C. Campbell, et al., C.A. 1803-
VCN, V.C. Noble (Del. Ch. Sept. 2, 2009) (Mem. Op.) (PDF 392 KB)
A recent Delaware Court of Chancery opinion has important implications for trustee accounting actions, particularly where the court reviews a trustee's investment decisions. The opinion places great emphasis on... (more)
Client Update
September 2009
Trust Act 2009 & Uniform Principal and Income Act - Material Changes to Title
12 of the Delaware Code (PDF 342 KB)
Delaware’s Governor Jack Markell signed into law Trust Act 2009 and the Uniform Principal and Income Act, effective August 1, 2009, and a bill that reinstated an estate tax in the State of Delaware, effective immediately, and a bill that, among other things, increased filing fees for statutory trusts... (more)
Publication
June 2009
The Delaware Personal Trust Advantage is Useful in Many Scenarios - Estate
Planning Magazine (PDF 3.13 MB)
An understanding of Delaware trusts is essential to every advisor who counsels clients concerning wealth transfer, asset protection and tax minimization... (more)
Speaking Material
December 4, 2008
The Delaware Decanting Statute - Delaware Bankers Association - Delaware
Trust Conference (PDF 127 KB)
Delaware is among seven states to have enacted so-called "decanting statutes" permitting trustees authorized to make outright distributions from a trust to instead make such distributions in further trust. The concept is simple but the implications and opportunities are immense and complex... (more)
Speaking Material
December 3, 2008
DING Trusts - Delaware Bankers Association - Delaware Trust Conference
(PDF 74 KB)
It is difficult to draft a trust instrument where the settler gives up enough rights to make the trust a nongrantor but retains enough rights to make transfers to the trust incomplete gifts... (more)
Client Update
November 2008
Trust Act 2007 & Trust Act 2008 - Material Changes to Title 12 of the
Delaware Code (PDF 381 KB)
Delaware's Governor Ruth Ann Minner signed into law Trust Act 2007 on July 5, 2007 and Trust Act 2008 on June 26, 2008. These two pieces of legislation were drafted by committees of the Estates and Trusts... (more)
Client Update
October 2008
Recent Private Letter Ruling Reforms Grantor Trust
(PDF 230 KB)
Many states, including Delaware, have enacted new laws which provide that the reimbursement of tax liabilities in the discretion of the trustee will not cause the assets of the trust to become subject to the claims... (more)
Client Update
April 2008
New Legislation Creates State Tax Planning Opportunities for the Financial
Services Industry (PDF 13 KB)
Delaware has enacted new legislation that changed Title 5 and 30 of the Delaware Code to provide special tax status for asset management corporations for purposes of the Delaware corporate income tax... (more)
Speaking Material
March 13, 2008
Taking advantage of the "Delaware Advantage:" Why and how to settle trusts
Delaware and move trusts to Delaware - Trust Roundtable - Boston Estate
Planning Council (PDF 545 KB)
In general, Delaware does not impose any taxes upon trusts except in cases where one or more trust beneficiaries live in Delaware and then only upon the portion of the trust income attributable to the Delaware resident beneficiaries... (more)
Speaking Material
November 29, 2007
Mechanics of Changing Trust Situs, How to move a trust to Delaware -
Delaware Bankers Association - Delaware Trust Conference (PDF 65 KB)
What Does It Mean to "Change a Trust's Situs"? Unfortunately, the term "trust situs" means different things in different contexts... (more)
Speaking Material
July 30, 2007
Advantages of Delaware Trust Law (PDF 28 KB)
This memorandum is a general discussion concerning the advantages of choosing Delaware as a situs of a trust and the advantages of choosing Delaware law to govern the administration of a trust... (more)
Speaking Material
July 2007
The Pursuit of Innovative Trust Strategies in an Uncertain Estate Planning
Environment - Worth Magazine/Christiana Bank & Trust Roundtable
(PDF 602 KB)
Led by Delaware, a number of states provide attorneys with greater leeway to fashion innovative trust strategies to create trusts that meet a client's specific estate planning or other financial needs... (more)
Publication
June 2007
Dynasty Trusts - They may be even more powerful if transfer tax laws change
- Estate Planning Magazine (PDF 44 KB)
The tax and creditor protection advantages of dynasty trusts will make these trusts more attractive as family wealth preservation tools in the event of repeal of the estate and GST taxes, or if the estate and... (more)
Speaking Material
November 29, 2006
Delaware Asset Protection and State Income Taxation of Trusts - Delaware
Bankers Association - Delaware Trust Conference (PDF 116 KB)
Asset protection trusts in a nutshell; requirements for setting up a Delaware asset protection trust; qualified disposition to qualified trustee; requirements of trust instrument; and... (more)
Speaking Material
October 2006
Choosing or Changing Trust Situs - Everything You Need To Know, and
Perhaps Worry About - Income Tax Consequences of Trust Situs Selection
(ACTEC Fall Meeting) (PDF 213 KB)
Several private letter rulings confirm that it is possible, under the laws of any state that permits the creation of so-called "asset protection trusts," to create a trust that is a nongrantor trust for purposes of Subpart E of Subchapter J of the Internal Revenue Code... (more)
Client Update
September 2006
Trust Act 2006 - Material Changes to Title 12 of the Delaware Code
(PDF 20 KB)
Governor Ruth Ann Minner signed Trust Act 2006 and the Delaware Disclaimer Act into law that will provide settlors, beneficiaries and fiduciaries of trusts with more tools and greater flexibility to accomplish their objectives... (more)
Publication
May 2006
Eliminate a Trust's State Income Tax - A Delaware non-grantor/incomplete gift
trust can help you do it (that is, if a client lives in the right state) (PDF 64 KB)
Many advisors are not aware that their clients might use Delaware trusts for state income tax planning. Delaware law can enable individuals residing in many states to use Delaware to minimize or even avoid state income taxes. That's because there is no Delaware income tax on Delaware trusts... (more)
Speaking Material
November 30, 2005
Recent Developments in The Federal Estate, Gift and Generation-Skipping
Transfer Tax Areas - Case Law Developments (38th Annual Delaware
Tax Institute) (PDF 81 KB)
Significant case law developments in the federal estate, gift and generation-skipping transfer tax areas from 2004 to 2005 primarily involved family limited partnerships and other substantially similar entities such as family limited liability companies and family business trusts aka statutory trusts... (more)
Speaking Material
November 16, 2005
Recent Developments in Delaware Trust Law - J.P. Morgan Trust Company of
Delaware Seminar (New York, NY) (PDF 196 KB)
A comprehensive presentation that covers The Renewed National Interest in Delaware Trusts; Dynasty Trusts, Deferred Income Charitable Remainder Trusts, Asset Protection Trusts; Trust Act 2000; Total Return Unitrusts; and other recent developments... (more)
Speaking Material
November 15, 2005
Delaware Asset Protection Trusts - Estate Planning Council of Delaware
Seminar (Wilmington, DE) (PDF 96 KB)
Delaware law allows for the creation of asset protection trusts to facilitate the establishment of irrevocable trusts that permit the transfer of estate assets to reduce the federal estate taxes otherwise due upon death... (more)
Client Update
July 2005
Trust Act 2005 - Material Changes to Title 12 of the Delaware Code
(PDF 157 KB)
Trust Act 2005 Section 3303 was amended to add a provision that enables a settlor of a charitable trust, or one or more designees of the settlor, to enforce the purpose of the charitable trust... (more)
Client Update
March 2005
Developments in Delaware Trust Law (PDF 168 KB)
Learn about the two significant trust law decisions in the Delaware Chancery Court and the pending federal bankruptcy bill that was amended to address and validate the use of asset protection trusts of type permitted under Delaware law... (more)
Client Update
June 2004
Delaware Trust Law Legislation (PDF 133 KB)
Senate Bill No. 288 was signed into law which amended Delaware's total return unitrust statute (12 Del. C. § 3527) making several improvements to the statute. In revelant part, the legislation... (more)
Publication
Winter 2003 - 2004
Minimizing Income Taxation of Trust Income: The Delaware Advantage -
Probate and Trust Law Section Newsletter of the Philadelphia Bar Association
(PDF 405 KB)
Many tax planners may not be aware that Delaware law can create opportunities for clients to employ Delaware trusts to reduce or eliminate the state income taxes applicable to their trusts, However... (more)