Jeffrey C. Wolken
Guest columnist

Delaware is the number one jurisdiction for personal trusts. The state is at the forefront of innovations in trust law and the infrastructure supporting the Delaware trust industry is unmatched, with distinguished courts, a proactive legislature, a large pool of professional advisers, and the presence of nearly all major financial institutions. Delaware’s status as the best trust jurisdiction attracted a considerable amount of non-Delaware trust activity to the premier state, which positively impacted the Delaware economy through trust fees, creation of ‘jobs, tax revenue and additional economic activity to support the trust industry.

Dispelling the myths

However, because the business in personal trusts is lucrative, the competition between states for this business is fierce and at times filled with misinformation. Other states claim to have the same favorable laws and similar benefits to attract potential customers, often at lower fees. Therefore, it is important for participants in the Delaware trust industry to be able to answer the question “Why Delaware?” When clients decide where to administer their personal trusts.

While promoting their own trust services, other states sometimes present subjective information as fact. There are even cases where a lawyer from a competing state creates tables purporting to rank pro-trust states on key features of trust law, such as the duration of a trust (dynasty trusts), trusts protection of national assets and the possibility of modifying a trust through a process known as “settling”. By selecting the criteria themselves and assigning arbitrary weights to these factors, these rankings elevate competing states to the top of the rankings.
list and move accordingly Delaware descends in the ranks.

The Delaware Advantage

We believe objective facts tell a different story. The facts show that Delaware is the number one jurisdiction in trust matters. In a 2011 empirical study, Northwestern University law professor Max Schanzenbach determined that a conservative estimate of the impact of out-of-state trust affairs on Delaware’s economy was between $ 600 million. and $ 1.1 billion. With the trust industry growing at a rapid pace and Delaware capturing a disproportionate share of that business, these amounts have likely increased significantly since 2011. Additionally, Delaware state tax revenues from its surplus trust business have been estimated in this study at between $ 19 million and $ 33 million per year.

Delaware is called the first state because it was the first to ratify the US Constitution. But did you also know that it was the first state to develop many innovative trust laws that sanctioned managed trusts, perpetual trusts and asset protection trusts, as well as laws allowing modern investment standards and flexible for trustees? The first state also initiated a trust structure that allows residents of certain high tax states to minimize or eliminate state income taxes on income generated from assets held within a trust properly. structured administered in Delaware, a so-called Delaware Incomplete Gift Non-Grantor (DING) trust.

There is no objective ranking of state trust laws generated by an unbiased source because each client’s needs are unique, which makes a ranking of state laws misleading for any given client. However, Delaware has all the flexible tools for perpetual trusts, managed trustees, modern fiduciary investment rules, flexible income distribution standards, and strong asset protection laws, which make it a first choice for practitioners looking to find the right home for their clients’ personal belongings. trusts.

Selecting Delaware to take advantage of these favorable laws has the support of state courts, which regularly enforce these laws as written. When advising clients where to administer the trust structures used to achieve the goals of managing a family’s wealth over several generations, practitioners want to be sure that the trust will work as intended. Delaware’s long history of court cases and the state’s sophisticated judicial system ready to apply the laws as they are written help provide this comfort.

Delaware’s geographic proximity to DC, Baltimore, Philadelphia and the New York City financial center provides access to leading professionals in the legal, tax, accounting and investment industries. The size and complexity of the Delaware trust industry attracts many talented professionals there to provide administrative services to these trusts. The synergy created between these experts fosters innovation that helps Delaware remain the leading state for trusted business.

Obviously, attracting non-Delaware residents to establish trusts in Delaware is an important and growing component of the state’s economy, which requires that we continue to promote Delaware’s advantages and maintain our position. of first jurisdiction for personal trusts. In many cases, this requires explaining the virtues of Delaware’s laws, its strong infrastructure of trust, and the depth of talented professionals who serve this industry. The First State has the tools and the talent to stay on top. However, it is important that participants in the Delaware trust industry be armed with the facts to counter the more subjective information from states competing for trust cases.


Jeffrey C. Wolken is National Director of Delaware Trust Planning for Wilmington Trust Wealth Management.


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