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Migrating the Domestic Asset Protection Trust Offshore

On October 2, 2009 Attorney David M. Grant presented an article, “Migrating the Domestic Asset Protection Trust Offshore,” at the Annual Southpac Offshore Planning Institute in Las Vegas, Nevada.  The full article can be found here: Migrating the Domestic Trust Offshore. The article discusses techniques for trust migration or trust redomiciliation.  It also provides reasons for using a domestic asset protection trust prior to going offshore.  Moreover, the article provides the following chart explaining the specific rules relating to trust migration for particular offshore jurisdictions:

JurisdictionGoverning LawInbound MigrationOutbound Migration
AnguillaAnguilla Trusts OrdinanceAllowed if recognized by previous governing lawAllowed if recognized by the new governing law and where the new law recognizes the validity of the respective interests of the beneficiaries
BahamasTrusts (Choice of Governing Law) ActAllowed without limitationAllowed without limitation
BelizeTrust ActAllowed without limitationAllowed without limitation
BermudaCompanies ActAllowed without limitationAllowed without limitation
British   Virgin IslandsTrustee Amendment ActAllowed, however, use of “flee” clause not allowed where: 1) court order disallows; 2) criminal proceedings instituted; 3) investigation begun by BVI Financial Service CommissionAllowed if recognized by the new governing law
Cayman   IslandsCayman Trusts (Foreign Element) LawAllowed if recognized by previous governing lawAllowed if recognized by the new governing law
Cook   IslandsCook Islands International Trusts ActAllowed without limitationAllowed without limitation
CyprusInternational Trusts LawAllowed if permissible under previous governing lawAllowed if permissible under new governing law
GibraltarTrustee Ordinance; and Trusts OrdinanceAllowedAllowed
GuernseyGuernsey Trusts LawAllowedAllowed
Isle of ManTrustee Act; Variation of Trusts Act; Recognition of Trusts Act; Trusts Act; and   Trustee ActThought to be allowed as long as trust instrument provides, due to absence of laws   either authorizing or restrictingThought to be allowed as long as trust instrument provides, due to absence of laws   either authorizing or restricting
JerseyTrusts (Jersey) LawAllowed if valid under previous governing lawAllowed without limitation
LabuanLabuan Offshore Trusts ActAllowed, however, possibly subject to appropriate legal capacity under governing law   in previous jurisdictionAllowed
LiechtensteinLiechtenstein Civil Code, note: Liechtenstein is   among the only civil law jurisdictions to have adopted a common-law-type trustAllowed without limitationAllowed without limitation
MaltaTrusts ActAllowed where formalities required for the settlement of a Maltese trust are metAllowed without limitation
NevisNevis International Exempt Trust OrdinanceAllowed, provided no part of the previous law will operate to render the trust or its   functions void, invalid or unlawful under Nevis lawAllowed, provided new jurisdiction is protected from provisions of Nevis law which would otherwise operate to render the trust or its functions void, invalid or   unlawful
NiueNiue Trusts ActAllowed where no provision of the prior law can operate so as to invalidate the trust under Niue lawAllowed where no provision of the Niue law can operate so as to invalidate the trust   under the new law
St. LuciaSt. Lucia International Trusts ActAllowed without limitation, regardless of whether recognized by laws of prior jurisdictionAllowed without limitation
Turks and CaicosTCI Trusts OrdinanceAllowed, provided trust was property constituted under laws of original jurisdiction.Allowed without limitation

 

A copy of the full article can be found here: Migrating the Domestic Trust Offshore.