Asset Protection Strategies
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Getting Title out of a Trust
GETTING TITLE OUT OF A TRUST Prepared by Ward P. Graham, Esq. Vice President, Region H Counsel Stewart Title Guaranty Company For 2002 Stewart Title Guaranty Company Agency Seminar A. INTRODUCTION For purposes of this seminar, we’re going to deal with issues involving getting title out of express trusts, i.e., those created by some form of instrument. We won’t be discussing trusts arising or imposed by operation of law, such as constructive trusts and resulting trusts. Nor will we get into the world of charitable trusts or the statutory custodial-type trusts dealt with in G.L. Chapters 201C and 203B. What we will be discussing are the two basic types of trusts that you are most likely to see in your conveyancing practice, testamentary trusts (created by the will of a decedent) and inter vivos trusts under written agreements or “declarations”. Included among the latter, for purposes of our discussion relating to taking title to real estate out of a trust, are revocable trusts, irrevocable trusts and so-called “nominee” trusts (most commonly containing the words “Realty Trust” in their name and being the most common form of trust used for real estate title holding purposes). But first, let’s start with some of the basics of trust law. B. CREATION OF TRUSTS 1. The Primary Relationship: Trustee and Beneficiary. 1 To begin with, for our purposes, “No trust concerning land, except such as may arise or result by implication of law, shall be created or declared unless by a written instrument signed by the party creating or declaring the trust or by his attorney.” G.L. -
Purpose Trusts As a Planning Tool for the 21St Century Thomas E
University of South Dakota School of Law From the SelectedWorks of Thomas E. Simmons September 8, 2019 Purpose Trusts as a Planning Tool for the 21st Century Thomas E. Simmons Brad Myers Available at: https://works.bepress.com/tom_simmons/71/ Sunday Session III: Purpose Trusts as a Planning Tool for the 21st Century 1 – Myers & Simmons Purpose Trusts as a Planning Tool for the 21st Century Bradley Myers is the Associate Dean for Administration and the Randy H. Lee Professor at the University of North Dakota School of Law. He became a Fellow of the American College of Trust & Estate Counsel in 2017. Governor Hoeven named him one of North Dakota’ Commissioners to the Uniform Law Commission in 2007 and has served on several drafting committees for Uniform Acts in the Trusts & Estates area. Professor Myers joined faculty at the University of North Dakota in 2001 and teaches Federal Income Taxation, Business Entities Taxation Trusts and Estates, Estate Planning. Professor Myers formerly practiced law in the states of Nevada, California and Oregon, with his practice focused primarily in tax, business and estate planning with a special focus on the issues surrounding the development of low-income housing. Professor Myers received BS and MS degrees in Kinesiology from the University of California, Los Angeles. He then spent two years at the University of California, Davis, doing post-graduate research in avian respiratory control. Professor Myers received his J.D. from the University of Oregon. He served on the editorial staff of the Oregon Law Review and was elected to the Order of the Coif. -
The Offshore Asset Protection Trust: a Prudent Financial Planning Device Or the Last Refuge of a Scoundrel?
Duquesne Law Review Volume 45 Number 2 Article 2 2007 The Offshore Asset Protection Trust: A Prudent Financial Planning Device or the Last Refuge of a Scoundrel? Richard C. Ausness Follow this and additional works at: https://dsc.duq.edu/dlr Part of the Law Commons Recommended Citation Richard C. Ausness, The Offshore Asset Protection Trust: A Prudent Financial Planning Device or the Last Refuge of a Scoundrel?, 45 Duq. L. Rev. 147 (2007). Available at: https://dsc.duq.edu/dlr/vol45/iss2/2 This Article is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. The Offshore Asset Protection Trust: A Prudent Financial Planning Device or the Last Refuge of a Scoundrel? Richard C. Ausness* INTRODU CTION .......................................................................... 148 I. AN INTRODUCTION TO OFFSHORE ASSET PROTECTION T RU STS ........................................................................... 149 A. Spendthrift Trusts............................................. 150 B. Offshore Asset Protection Trusts....................... 152 C. Domestic Asset Protection Trusts ..................... 156 II. OFFSHORE ASSET PROTECTION TRUSTS IN THE COURTS158 A. Application of FraudulentTransfer Laws ....... 158 B. Jurisdictionand Choice of Law Issues............. 162 1. Jurisdiction....................................................... 162 2. Choice of Law Issues ........................................ -
Trust Loans to Beneficiaries – Paper
ADMINISTERING TRUSTS IN RECESSIONS: TRUST LOANS TO BENEFICIARIES DAVID F. JOHNSON Winstead PC 300 Throckmorton, Suite 1700 Fort Worth, Texas 76102 817-420-8223 DAVID FOWLER JOHNSON [email protected] www.txfiduciarylitigator.com Managing Shareholder of Winstead PC’s Fort Worth Office 300 Throckmorton, Suite 1700 Fort Worth, Texas 76102 (817) 420-8223 David maintains an active trial and appellate practice for the financial services industry. David is the primary author of the Texas Fiduciary Litigator blog (txfiduciarylitigator.com), which reports on legal cases and issues impacting the fiduciary field in Texas. David has specialized in trust and estate disputes including: trust modification/clarification, trustee resignation/removal, breach of fiduciary duty and related claims, accountings, will contests, mental competency issues, and undue influence. David’s recent trial experience includes: Represented a trustee in federal class action suit where trust beneficiaries challenged whether it was the authorized trustee of over 220 trusts; Represented trustees regarding claims of mismanagement of assets; Represented a trustee who filed suit to modify three trusts to remove a charitable beneficiary that had substantially changed operations; Represented a trustee regarding dispute over the failure to make distributions; Represented a trustee/bank regarding a negligence claim arising from investments from an IRA account; Represented individuals in will contests arising from claims of undue influence and mental incompetence; Represented estate representatives against claims raised by a beneficiary for breach of fiduciary duty; Represented beneficiaries against estate representatives for breach of fiduciary duty and other related claims; and Represented estate representatives, trustees, and beneficiaries regarding accountings and related claims. David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate, and Personal Injury Trial Law by the Texas Board of Legal Specialization. -
Trust-Drafting Essentials
Trust-Drafting Essentials Edward L. Perkins JD, LLM (Tax), CPA Gibson & Perkins, PC www.gibperk.com [The following material is an excerpt from the Pennsylvania Trust Handbook, by Edward L. Perkins, JD, LLM, CPA] CHAPTER SEVENTEEN OVERVIEW AND INTRODUCTORY PROVISIONS §17.1 Overview A trust is essentially an instrument of property transfer, but unlike a sale or an outright gift, a transfer of property by trust is unique in that the settlor/transferor can impose terms and conditions on use and disposition of the property long after the transfer is complete. Just what the nature of the terms and conditions imposed will depend in large part on the specific objectives that the settlor is trying to achieve by transferring the property in trust. In Pennsylvania, a trust can only be legally created if the settlor executes a written document.1 The objective of the trust document is to define the terms and conditions of the property transfer. Because a transfer by trust will of necessity involve a settlor, the trust property, trust beneficiaries, and one more trustees, how those terms and conditions are defined in the document will also define the relationship of the settlor, the trust beneficiaries, and the trustee to the trust property. This Chapter and the Chapters that follow will offer some insight into how to approach the drafting of effective trust documents. §17.2 Before You Draft In any trust, there are certain fundamental elements of the trust which must be identified and defined before you can draft an effective document. These include the following: – The Trust Purpose – What is the purpose that the settlor is trying to achieve in establishing the trust? In many trusts, there will be more than one purpose to be served. -
Asset Protection: an Analysis of Domestic and Offshore Trust Accounts
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Michigan State University College of Law: Digital Commons ASSET PROTECTION: AN ANALYSIS OF DOMESTIC AND OFFSHORE TRUST ACCOUNTS Matthew Russo INTRODUCTION .......................................................................................... 265 PART 1: BACKGROUND OF TRUST LAW, THE ATTORNEY’S ROLE, AND WHERE WE ARE TODAY ......................................................................... 268 1. Basic Trust Terminology ............................................................. 268 2. Trust or Will? ............................................................................... 269 3. Current Trust Law and the Attorney’s Role ................................ 271 4. Introduction to Domestic and Offshore Trust Accounts .............. 273 PART 2: THE SPENDTHRIFT PROVISION ..................................................... 275 1. What is the Spendthrift Provision? .............................................. 275 2. Benefits of the Spendthrift Provision .......................................... 276 3. Creditor Rights in a Spendthrift Context ..................................... 277 4. Spendthrift Provision Policy Considerations ............................... 278 5. The Changing Atmosphere Surrounding Spendthrift Provisions 279 PART 3: DOMESTIC ASSET PROTECTION TRUSTS ...................................... 279 1. Alaska’s Domestic Asset Protection Trust Law .......................... 280 2. Emerging Domestic Asset Protection Trust Law -
Jurisdictional Considerations in Establishing a Protective Trust
JURISDICTIONAL CONSIDERATIONS IN ESTABLISHING A PROTECTIVE TRUST OFFSHORE TRUSTS: HOW THE LANDMARK CASES HAVE AFFECTED DRAFTING ISSUES AND SELECTION OF JURISDICTION International Bar Association International Wealth Transfer Practice Conference New York, New York December 8-10, 2003 Elizabeth M. Schurig* Giordani Schurig Beckett Tackett LLP 100 Congress Avenue, 22nd Floor Austin, Texas 78701 512.370.2720 www.gsbtlaw.com I. INTRODUCTION. When approaching the question of asset protection planning, it is important to review the types of jurisdictions in which a protective structure might be sitused and the statutory and case law of those jurisdictions. To that end, this outline will first discuss the preliminary issues that must be considered when implementing a protective trust before focusing on selected foreign jurisdictions. It will then discuss the strengths and weaknesses of the recent asset protection trust legislation in certain U.S. states. II. PRELIMINARY ISSUES. Before focusing on specific jurisdictions, it is important to consider the following general issues, always keeping in mind that the most protective structures are those that are completely severed from the United States. A. Aggressive Vs. Non-Aggressive Legislation. One alternative is to seek the protection of those jurisdictions which have aggressive asset protection legislation (such as the Cook Islands, Gibraltar, and the Bahamas); however, some clients may take greater comfort in the fact that jurisdictional ties will be severed and that there is greater security in more established offshore financial centers (such as the Isle of Man, the Channel Islands, or Liechtenstein). However, even if the only objective is asset protection, it is not necessarily appropriate to select a jurisdiction that has aggressive legislation because a potential claimant could assert that the presence of aggressive * © Copyright 2003 Elizabeth M. -
The Caribbean Offshore Financial Services Revolution – a Bold, Futuristic Initiative Requiring Brave Leadership
THE FUTURE OF THE CARIBBEAN The Caribbean Offshore Financial Services Revolution – A Bold, Futuristic Initiative Requiring Brave Leadership By Professor Rose-Marie Belle Antoine Offshore Centres indicative of a broader issue My topic, while focusing on Offshore Financial Centres (OFCs), highlights an area where law intersects with economic and social policy. Moreover, it is representative of a much wider issue that confronts the Caribbean’s socio-economic landscape, having deep implications for our future. On the one hand, the development of OFCs in the Caribbean is a remarkable example of Caribbean talent, dedication, creativity and brilliance. On the other, the OFC phenomenon is a tragic reminder of a region handicapped by a world view that has defined our political and economic policy; and even the way in which we define ourselves, or rather, fail to define ourselves and our place in the world. This is an opportune time to be considering such policy issues – at a time when the very existence of the sector, particularly in developing countries such as ours, is being threatened by an aggressive onslaught by onshore nations under the umbrella of regulation and respectability – much of it orchestrated by the Organisation of Economic Cooperation and Development (OECD) and Financial Action Task Force (FATF). I will demonstrate that while legitimate concerns may be raised about the sector, as with any financial sector, many of the allegations, though posed as valid legal objections, are coloured by political and economic overtones and are without legal justification. In fact, from a legal and economic policy perspective, offshore structures and policies are inherently legitimate. -
Offshore Financial Centers and Tax Havens – an Overview Chapter 111 Neha Sinha and Ankita Srivastava
International Taxation — A Compendium Offshore Financial Centers and Tax Havens – An overview Chapter 111 Neha Sinha and Ankita Srivastava Neha Sinha, a Law Graduate, is a core member of the international tax practice and funds formation practice at Nishith Desai Associates. She advises on structuring of inbound/outbound investments, employment taxation, e-commerce, wealth and succession planning and mergers and acquisitions. She is a regular speaker at conferences and seminars and regularly contributes articles to reputed Indian and International tax journals. Ankita Srivastava, a Post Graduate in Law from the Vienna University of Economics and Business, Vienna, Austria, is an associate at Nishith Desai Associates, primarily involved with firm’s international tax practice. She has contributed articles to reputed Indian and International tax journals. Prior to joining Nishith Desai Associates, she has also extensive experience working with Amarchand & Mangaldas, Suresh Shroff & Co. Synopsis Particulars Page No. 1. Offshore Financial Centers .....................................................................990 1.1. Meaning and Origin ................................................................................990 1.2. Role of Offshore Financial Centers .....................................................992 2. Tax Havens ................................................................................................992 2.1. Meaning ....................................................................................................992 -
The Role of Offshore Financial Centres in Globalization
*THE ROLE OF OFFSHORE FINANCIAL CENTRES IN GLOBALIZATION by Prem Sikka University of Essex, UK. * I am grateful to Lesley Catchpowle and John Christensen for their insightful comments and suggestions. Special thanks are also due to the Research Promotion Fund operated by the University of Essex for funding this work. Address for correspondence: Prem Sikka Department of Accounting, Finance and Management University of Essex Colchester Essex CO4 3SQ, UK. e-mail:[email protected] 1 THE ROLE OF OFFSHORE FINANCIAL CENTRES IN GLOBALIZATION Abstract Capitalism is inherently crisis-ridden, but shows little sign of exhausting itself. It continues to develop new ways of reinvigorating itself and generating economic returns for capital. Globalisation is considered to be the most advanced phase of capitalism. The Offshore Financial Centres (OFCs) are an integral part of globalisation. They facilitate growing mobility of finance by facilitating no/low tax, no/low regulation, secrecy and anonymity to enable footloose capital to roam the world. Their policies play a key role in tax avoidance/evasion, money laundering, flight of capital, degradation of regulation, instability and economic underdevelopment, and have serious consequences for people everywhere. Professional intermediaries, such as accountants and lawyers, play a key role in the development and expansion of OFCs. Despite the veneer of liberal democracy, some OFCs are captured by the finance industry and advance the interests of financial capital. Many OFCs are nurtured and protected by leading Western hegemons with developed capital and financial markets. This paper encourages scholars to study the operations, functions, policies and politics of OFCs by drawing attention to their significance and impact on societies. -
Trusts: Weapons of Mass Injustice?
Trusts: Weapons of Mass Injustice? Andres Knobel1 (edited by Nicholas Shaxson) February 13th, 2017 Foreword The title may provoke some trust practitioners and users, but many features that make trusts useful to their users can also be deployed for socially abusive and harmful purposes - just as defensive weapons can be used for offensive purposes. This paper seeks to start a debate on the harms that trusts can inflict on societies, and what can be done about this. I take a global perspective (so not everything will always apply to each country), and propose global and local solutions. I do not address the purely internal relationships between parties to a trust (such as settlors, trustees and beneficiaries), but focus on trusts’ impact on wider society. With the support of 1 Special thanks for the extremely valuable feedback received from Adam Hofri-Winogradow, Adam Riff, Elise Bean, Graham Moffat, Heather Lowe, Jack Blum, Robert Palmer, Sol Picciotto and Stewart Sterk. 1 Executive Summary Trusts are usually described as a legal arrangements involving private family matters (such as caring for sick or vulnerable people, or arranging family affairs for tax and estate purposes.) A simple trust arrangement typically involves three parties: a settlor (such as a parent) transfers assets to a trustee (such as a trusted lawyer) who must hold and manage those assets according to the settlor’s instructions, and for the benefit of beneficiaries (such as the parent’s sick child). This paper deals with the other side of trusts: the abuses and risks that they create and facilitate. First, secrecy. -
Understanding Offshore Finance: the Panama Papers in Perspective Andy Hira, Brian Murata, and Shea Monson [email protected] Updated: Mar
Understanding Offshore Finance: The Panama Papers in Perspective Andy Hira, Brian Murata, and Shea Monson [email protected] Updated: Mar. 17, 2016 Work in progress- please do not circulate without permission of the authors Acknowledgements: Norbert Gaillard, Patty Hira The Western financial system is rapidly coming to resemble nothing as much as a vast casino. – Susan Strange (1986, 1). Introduction In April 2016, the International Consortium of Investigative Journalists (ICIJ) announced the release of 11.5 million leaked documents from the Panamanian law firm Mossack Fonseca dating back to the 1970s. The documents were leaked originally to the German newspaper Süddeutsche Zeitung, who then contacted the ICIJ for help. The Panama Papers help to shed light on how wealthy individuals and corporations around the world use offshore financial centres to hide wealth and evade taxes. News that prominent leaders such as UK PM David Cameron and Icelandic PM Gunnlaugsson had such accounts created public awareness about how widespread such practices are. The issue dates back to the 1980s when offshore centres were set up; in 1998 the OECD published a report about “harmful tax competition” from offshore centres. The Panama Papers reinforce the perceptions of widespread injustice in the financial and taxation systems, which feeds into a wider discourse centred around global and national inequality. As Susan Strange pointed out in 1996 (63), the social and political consequences of the failure of governments to harmonize taxes is “almost entirely overlooked” in the political science and economics literature. The consequences, as we discuss below, include an increasingly disproportionate burden on individual taxpayers, exacerbating inequality, and increasing resort to debt by governments This paper examines issues around global tax evasion, including obstacles to reform and possible paths forward.