Asset Protection Trusts

Around The Water Cooler we typically do not dive into discussions about law review articles.  However, several outstanding law review articles have been published in the past year which deserve the attention of trustees, trust beneficiaries and others involved in the administration of trusts.

  • For the past few years, Adam Hofri-Winogradow has conducted an exhaustive survey of professional trust service providers.  After receiving over 400 responses from professional service providers all over the world (full disclaimer: I was one of the respondents), he has now published his findings in The Demand for Fiduciary Services: Evidence from the Market in Private Donative Trusts.  Hofri-Winogradow focuses his analysis and conclusions on (1) perpetual trusts, (2) trustee exculpatory terms, (3) asset protection, and (4) settlor control of trusts.
  • Decanting has become increasingly prevalent in the trust world.  Trust decanting is the process of distributing assets from one trust to a new trust with different terms.  As Steve Oshins describes the process, “Just as one can decant wine by pouring it from its original bottle into a new bottle, leaving the unwanted sediment in the original bottle, one can pour the assets from one trust into a new trust, leaving the unwanted terms in the original trust.”  Despite its attractions, trust decanting has serious policy implications.  In his new article in the Cardozo Law Review, Stewart Sterk examines these policy implications and the social costs and benefits of decanting in Trust Decanting: A Critical Perspective.
  • In Probate Lending in the Yale Law Journal, David Horton and Andrea Chandrasekher fix their focus on the probate loan industry.  One of the most controversial trends in the American legal system in recent years has been the practice of litigation lending whereby companies pay plaintiffs a lump sum in return for a stake in a pending lawsuit.  As the authors detail, a similar phenomenon has quietly emerged in the probate system.  Companies are advancing funds to heirs in probate proceedings.  The authors determined that during the course of one year in one county in California, probate lending companies loaned $808,500 in exchange for $1,378,786, a return of 69%.