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Uniform Prudent Investor Act (UPIA)

Trustees are to administer a trust or estate in accordance with the terms of the trust or will in spite of the provisions of UPIA.[i]  Otherwise, trustees are obligated to comply with the prudent investor rule.[ii]  The prudent investor rule consists of the trustee considering the terms, purposes, requirements for distribution and other circumstances of the trust when investing and managing trust property.  The trustee is to satisfy this standard by exercising reasonable care, skill and caution.[iii]  This standard dates back to Harvard College v. Amory, 26 Mass. (9 Pick) 446 (1830).  Trustees should “observe how men of prudence, discretion...

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Duties of a Trustee

[caption id="attachment_1566" align="alignright" width="300"] The Offices of Grant Morris Dodds[/caption] The first duty of the Trustee is to honor and Carry out the intentions of the settlor or the trust as provided for the in the trust agreement.  Almost all rules of the rules of trust law are default rules that the settlor can “alter or abrogate.”[i]  Beneficiaries of a trust can also excuse the performance of a trust when all are “capable and not misinformed” under traditional trust law.[ii]Trustee Duties.  Other duties of the Trustee are as follows: Duty of Loyalty.  Under a Duty of Loyalty, a trustee who invests and manages trust...

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The role of Trust Protectors, Trust Advisers, and Special Fiduciaries

This article explains some of the powers that Trust Protectors, Trust Advisers, and Special Fiduciaries might be given. Trust Protector: a trust protector is a third party who is given contractual powers to protect the terms of a trust.  The position of trust protector has been common in offshore asset protection planning but is a newer concept in onshore asset protection planning.  A trust protector’s powers and authority are spelled out in the trust instrument.  The most common power of a trust protector is the ability to remove and replace a trustee who is not administering the trust according to its...

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Charging Order Protection is Now Available for Small Corporations

The following article was written by David M. Grant and Jeremy K. Cooper and was originally published in COMMUNIQUÉ (May 2009, Vol. 30, No. 5), the official journal of the Clark County Bar Association. “What’s good for the goose is good for the gander.” This timeless cliché accurately portrays the logic behind Nevada’s recent ground-breaking decision to extend charging order protection beyond the realm of partnerships and limited-liability companies (LLCs) to corporations operating as small businesses. Closely-held corporations, until now, have never received the same charging order protection their partnership and LLC cousins have enjoyed, but because these entities share many commonalities,...

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Family Friendly Provisions of the Nevada Probate Code

The unexpected loss of a loved one can leave a family not only with a huge emotional loss but also in financial straits. The purpose of the Nevada Probate Code, as found in Title 12 of the Nevada Revised Statutes, is to accomplish the speedy settlement of a decedent’s estates at the least expense to the parties involved. See NRS 132.010. A major concern of the Probate Code is the continued care of the surviving spouse and minor children. There are several family friendly provisions that allow for: 1) the set-aside of estates to surviving spouses and minor children despite the...

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International Business Companies (“IBCs”) & Offshore LLCs

The British Virgin Islands International Business Company.   As stated above, many foreign jurisdictions have taken the International Business Companies (IBC) Act of the British Virgin Islands (BVI) and adopted it with hardly any change.  For this reason the BVI’s laws are the “gold standard” in IBC legislation.  As such, this outline will cover some of the particulars of the BVI IBC law. History of the IBC in the BVI.  The BVI Business Companies Act, 2004 (as amended, the Act), is the sole corporate statute in the British Virgin Islands (“BVI”) and regulates all BVI companies. The old International Business Companies Act,...

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Overview of Offshore Companies

What is an offshore company?  Generally, an offshore company is one that is incorporated, organized, formed, and/or governed outside the jurisdiction where its primary operations take place and where its owners are domiciled. What are the typical requirements for registering an offshore company? Must be formed from outside.  Generally, an offshore company must be formed from outside the offshore jurisdiction. Cannot operate within the jurisdiction.  Generally, an offshore company may not “operate” within the jurisdiction of registration. Payment of registration and renewal fees.  Generally, an offshore company must pay nominal registration and renewal fees (annually) as assessed by the offshore jurisdiction in question. How are...

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Trust Administration in Nevada

Closing Procedures and Timeline.  Following is an explanation of the recommended administrative and termination procedures. Affidavit of Successor Trustee (“AST”) - The signing of an AST by the successor trustee formally installs them as the trustee of the Trust and is evidence of the same.  If real property is owned by the Trust, the AST will add the Successor Trustee to the title of the property upon recording in the proper county recorder’s office. Notice to creditors – In Nevada known creditors have thirty (30) days from mailing date to file a written claim with the Trustee and ninety (90) days from the first...

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Donating Appreciated Stock

(Republished in part from Vegas PBS Source Magazine, October 2011) Donating appreciated stock to charity is a sure way to generate a little tax relief for yourself.  If you do decide to donate stock, here are a few important points to consider before making your gift. Make sure the stock has appreciated.  If the stock has fallen in value since you purchased it, you may be better off selling the stock first to generate a capital loss.  Then, if you desire, you can donate the proceeds to charity. Select long-term stock. If you have owned the stock for more than one year before making...

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Community Property vs. Separate Property for Estate Planning

Community Property. Community property is everything that a husband and wife own together. Nevada is a community property state. This means both the husband and wife equally own all money earned by either one of them from the beginning of the marriage until the date of separation. In addition, all property acquired during the marriage with "community" money is owned equally by both the wife and husband, regardless of who purchased it.  Like community assets, all debts contracted from the beginning of the marriage until the date of separation are community debts. Therefore, each spouse is equally liable for debts. A full...

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