Todd A. Flubacher
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Todd represents Delaware trust companies, individuals, and law firms throughout the United States on all aspects of the creation, migration, modification, and administration of Delaware trusts.
His practice primarily emphasizes the unique advantages of Delaware trust law, including directed trusts, dynasty trusts, asset protection trusts, trust modifications, and tax planning. He serves as Delaware trust counsel to many of Delaware’s corporate trustees, advising on trust administration and fiduciary risk.
Todd has substantial experience with migrating trusts to Delaware, changing governing law, and modifying trusts by decanting, merger, and non-judicial settlement agreements. He drafts, reviews and comments on trust agreements and renders legal opinions. Todd routinely files trust petitions with the Delaware Court of Chancery for instructions, reformations, modifications, transfer of trust situs, construction, choice of law, and other trust-related matters.
As an estate planner, Todd assists high-net-worth clients with implementing planning goals, saving taxes, protecting assets, and managing and preserving wealth for future generations. He also works with executors of Delaware estates to assist with estate administration, probate and planning.
Todd also has a substantial fiduciary litigation practice, representing trustees, executors, and beneficiaries in all types of trusts and estates litigation, including, directed trusts, choice of law, disputes over construction and interpretation of trusts and wills, creditor’s rights, breach of fiduciary duties, trustee compensation, undue influence, will contests, trustee self-dealing, powers of appointment, decanting and many other issues. He also has served as an expert witness on Delaware trust law in large trust litigation matters.
Todd is a Fellow of the American College of Trust and Estate Counsel (ACTEC) and he serves on the Fiduciary Litigation Committee, the Forms Taskforce and is the Chair of the Fiduciary Administration Taskforce. He is also a member of the Society of Trust and Estate Practitioners. Todd is a past-chair of both the Estates & Trusts and Tax Sections of the Delaware State Bar Association. He serves as an official observer for the Drafting Committee for the Uniform Directed Trust Act and the Conflict of Trust and Estate Laws. He is a past-chair of the Delaware Trust Conference, serves on its Executive Steering Committee, and serves on the Editorial Board of Trusts & Estates magazine. He also serves as member of the Board of Directors of The Joshua M. Freeman Foundation and Board of Trustees of Sanford School.
Todd is a nationally recognized author and his articles have appeared in notable publications such as Estate Planning magazine and Trusts & Estates magazine. He is the Delaware contributor to Thomson Reuters’ Practical Law guide on Estate Tax. He is a recognized speaker, frequently appearing before professional and business audiences across the country, including ACTEC, the Heckerling Institute, Notre Dame Tax & Estate Planning Institute, Kansas City Estate Planning Symposium, Estate Planning Councils, the Delaware Tax Institute, the Delaware Trust Conference and numerous webinars.
Represent beneficiaries in dispute over disposition of trust. IMO Trust FBO Samuel F. duPont U/A Dtd. Aug. 4,1936, C.A. No. 12904-MG
Served as Special Litigation Trustee. In re: The Milton Grant 2006 Irrevocable trust Agreement Number Two, C.A. No. 11170-ML
Represent beneficiaries in case involving proposed modification of a testamentary trust. In re Trust Under Will of Flint for the Benefit of Shadek, C.A. No. 10593-VCL
Represent trustee in dispute over disposition of trust. IMO Trust Under Will of Harold S. Schutt, C.A. 10574-MZ
Represent beneficiary in dispute over trust. IMO Opperman, Dwight D. Special Trust, C.A. No. 9718-ML
Represent settlor in dispute over trust. IMO Susan D. Elia Irrev. Trust U/A Dtd. Sept. 15, 2011, C.A. No. 9472-MA
Represented parents of minor beneficiaries in a matter involving a variety of fiduciary issues. IMO: Two Trusts Created Pursuant to Agreement Dated April 29, 1991 Known as JBG Childrens 1991 Trust Agreement, C.A. No. 5894-VCP
Represented executor and trustee in defense of challenge to will and trust. In re Estate of Seppi, C.A. 3189-MA, 2010
Represented trustee in case involving creditor claim against estate and trust. In re Trust Under Agreement of Walter F. Wickes, III, C.A. 2515-VCS, 2008
Represented trustee in construction matter. In re Barker Trust Agreement, C.A. 20455-VCL, 2007
Represented trustee in breach of trust challenge. McNeil v. McNeil, No. 409,2001, 497,2001, 505,2001
Represented trustee in breach of trust challenge. McNeil v. Bennett, C.A. No. 15875
Represented trustee in fee dispute. In re Trust Under Agreement of Christopher L. Ward, C.M. 9841-N.C., 2001
News & Insights
- Speaking Engagement, 04.27.2023
Todd Flubacher will speak on the panel, “Releasing the Dead Hand: Helping families embrace transparency.”
- Speaking Engagement, Orlando, FL | Virtual, 01.09.2023 through 01.13.2023
Todd Flubacher will speak on the panel, “Upside Down with a Perfect View: Practical Considerations in Establishing a Long Term Trust” at the 57th Annual Heckerling Institute.
- Speaking Engagement, Wilmington, Delaware | Virtual, 10.18.2022 through 10.19.2022
Morris Nichols is a gold sponsor of the seventeenth annual Delaware Trust Conference from October 18 to 19, 2022 in Wilmington, Delaware.
- Publication, 10.11.2022
Morris Nichols’ Delaware Trust Law Companion is an invaluable resource for professionals whose practice involves Delaware trusts.
- Media Mention, The Best Lawyers in America, 08.18.2022
The Best Lawyers in America has released its 2023 edition, listing 35 attorneys from Morris Nichols. The results are based on peer-review evaluations from more than 71,000 eligible attorneys.
- Morris Nichols and Two Attorneys Distinguished for Private Wealth Law in Delaware by Chambers HNW 2022Media Mention, Chambers High Net Worth, 07.14.2022
Chambers High Net Worth 2022 again ranked Morris, Nichols, Arsht & Tunnell LLP in Band 1 for Private Wealth Law in Delaware.
- Speaking Engagement, Nashville, TN, 05.01.2022 through 05.05.2022
Todd Flubacher will present “Directed Trusts in Today’s Fiduciary World.”
- Speaking Engagement, Virtual, 04.28.2022
Todd Flubacher will speak on the panel, “Just Because You Can, Doesn’t Mean You Should.”
- Speaking Engagement, Virtual | Kansas City, 04.28.2022
Todd Flubacher will speak on directed trusts.
- Speaking Engagement, Wilmington, Delaware | Virtual, October 19-20, 2021
Morris Nichols is a gold sponsor of the sixteenth annual Delaware Trust Conference from October 19 to 20, 2011 in Wilmington, Del. Hosted by the Delaware Bankers Association at the Chase Center on the Riverfront in Wilmington, with live streaming and on-demand sessions, too!
- Media Mention, The Best Lawyers in America, 08.19.2021
The Best Lawyers in America has released its 2022 edition, listing thirty-two attorneys from Morris Nichols. The results are based on peer-review evaluations from more than 66,000 eligible attorneys.
- Media Mention, Chambers High Net Worth, 07.22.2021
The 2021 edition of Chambers High Net Worth has again ranked Morris Nichols in Band 1 for Private Wealth Law in Delaware.
- Speaking Engagement, Webinar, 06.17.2021
Morris Nichols partner Todd Flubacher will serve as a panelist in the webinar, “Let’s Be Clear! Drafting To Minimize Litigation and Disputes” hosted by The American College of Trust and Estate Counsel (ACTEC) on Thursday, June 17, 2021 from 3:15 p.m. to 5:15 p.m. EST.
- Speaking Engagement, Webinar, 03.29.2021
Morris Nichols partner Todd Flubacher will co-present with Cynthia D.M. Brown of Commonwealth Trust Company in the first session on "Discretionary Decision-Making."
- Firm News, 08.20.2020
Thirty-one Morris Nichols attorneys were recognized in the 2021 edition of The Best Lawyers in America. The results are based on peer-review evaluations from more than 67,000 eligible attorneys.
- Webinar, 07.16.2020
- Firm News, 07.09.2020
Chambers High Net Worth 2020 ranked Morris, Nichols, Arsht & Tunnell LLP in Band 1 for Private Wealth Law in Delaware.
- Delaware Estate Tax Q&A, Delaware Durable Power of Attorney & Delaware Advance Health-Care DirectiveArticle, Practical Law, 04.27.2020
Morris Nichols attorneys Todd Flubacher and J. Zachary Haupt authored three guides on Delaware law for Practical Law. Their Delaware Estate Tax Q&A guide addresses whether a jurisdiction has any estate tax or other similar taxes imposed at death and, for jurisdictions currently imposing a state estate tax.
- Speaking Engagement, New York, NY, 11.14.2019
- Speaking Engagement, Lewes, Delaware, 11.07.2019 Through 11.08.2019
- Speaking Engagement, Webinar, 10.30.2019
- Speaking Engagement, Wilmington, Delaware, 10.22.2019 Through 10.23.2019
- Article, Trusts & Estates Magazine, 08.01.2019
In June, Delaware enacted its latest installment of annual trust legislation. Trust Act 2019 includes many revisions and clarifications, but two new statutes, Sections 3343 and 3344 of Title 12 of the Delaware Code, represent material advancements in the law.
- Article, Trusts & Estates Magazine, 03.2019
In recent years, many states have enacted pre-mortem validation statutes enabling testators or settlors to take proactive steps to avoid will or trust contests.
- How to Avoid Challenges to a Client’s Testamentary Documents: Pre-Mortem Validation and No-Contest Clauses to the Rescue!Speaking Engagement, Webinar, 02.13.2019
- Article, Trusts & Estates Magazine, 11.2018
Over the last decade, trust law has evolved so the role of trustee can better reflect the open architecture that modern families desire. It’s now commonplace for trust settlors to design so-called “directed trusts,” and existing trusts are frequently transferred to new jurisdictions to be modified through the use of techniques such as decanting, non-judicial settlements agreements, consent modifications, court orders and trust mergers so they can become directed trusts.
- Article, Delaware Banker Magazine, Spring 2017
- Media Mention, Financial Times, 03.10.2017
Morris Nichols partner Todd Flubacher recently spoke with The Financial Times in an article titled, “Why Directed Trusts Can Be Effective in Asset Management.” In his Delaware trust law practice, Todd finds the “overwhelming majority” of his cases involve directed trusts.
- Article, Trusts & Estates Magazine, 03.2017
- Article, Delaware Banker Magazine, Spring 2016
Delaware’s House and Senate have recently passed a change to Delaware’s PPLI premium tax that makes Delaware much more competitive with other jurisdictions that have historically attracted virtually all of the PPLI trust planning business.
- Article, NAEPC Journal of Estate & Tax Planning, 10.2015
Proper drafting and administration can reduce doubt about who’s responsible for a particular matter.
- Firm News, 07.15.2015
- Article, Delaware Banker Magazine, Summer 2014
- Article, 12.01.2013
The country’s leading trust jurisdictions have been experiencing enormous growth in recent years from two sources: the creation of new trusts and the migration of existing trusts to take advantage of more favorable administrative laws. It’s become commonplace to optimize planning through careful jurisdiction selection, migrating an existing trust to an advantageous jurisdiction and modifying the trust to capitalize on the new administrative laws, including converting it to a directed trust to accomplish specific objectives.
- Article, 05.01.2013
Trusts, Estates & Tax Group partner Todd Flubacher authored “Trust Merger: What’s Good for the Goose Is Good for the Gander” featured in the Spring 2013 edition of Delaware Banker.
- Article, 01.01.2012
Morris Nichols partner Todd Flubacher authored “Don’t Tread On Me: How Delaware Courts Review Trustee Discretion” featured in the January 2012 edition of Delaware Banker Magazine. The article examines recent Delaware case law and a hidden gem found in Delaware’s trust statutes that answers the question, “What is the risk that an interested party will sue a trustee whenever they take discretionary action?”
- Article, 01.01.2011
Morris Nichols' Todd Flubacher and PNC Wealth Management vice president Ann Marie Levin authored Put Decanting to Work to Give Breath to Trust Purpose featured in the January 2011 edition of Estate Planning Magazine that examines one of the most significant advancements in modern personal trust law: the enactment of state decanting statutes that specially authorize trustees to effectively amend the provisions of irrevocable trusts...
- Article, 12.01.2010
Trusts, Estates & Tax Group partner Todd Flubacher authored ”The Trustee’s Role in Directed Trusts” featured in the December 2010 edition of Trusts & Estates Magazine. David A. Diamond, head of J.P. Morgan Trust Company of Delaware, co-authored.
- Article, 09.01.2010
Todd Flubacher, ACTEC Fellow and partner in Morris Nichols’ Trusts, Estates and Tax Group and associate Randy Herndon authored Delaware Asset Protection Trusts and Creditors’ Rights featured in the September 2010 edition of Estate Planning Magazine that answers the question: How is a settlor who creates a trust in which he or she retains the right to receive distributions better off creating the trust as a Delaware asset protection trust (DAPT) than as a trust in another jurisdiction that does not provide creditor protection to a settlor?
- Article, 03.07.2010
Trusts, Estates & Tax Group and Commercial Law Counseling Group partner Todd Flubacher authored Planning to Avoid Pitfalls - Asset Protection Trusts Thirteen Years After Enactment featured in the Winter 2010 edition of Delaware Banker magazine.
- Article, 07.01.2007
Thomas Pulsifer and Todd Flubacher discuss changes and developments in Delaware trust law at a Christiana Bank & Trust roundtable moderated by Worth Magazine.
- Article, 05.01.2006
Many advisors are not aware that their clients might use Delaware trusts for state income tax planning. Delaware law can enable individuals residing in many states to use Delaware to minimize or even avoid state income taxes. That's because there is no Delaware income tax on Delaware trusts.
- Article, 12.01.2003
Todd A. Flubacher, Thomas R. Pulsifer, “Minimizing Income Taxation of Trust Income: The Delaware Advantage,” 108 Probate and Trust Law Section Newsletter 8, Philadelphia Bar Association Probate and Trust Law Section (Winter 2003-04)
Honors & Recognitions
Chambers HNW, The World’s Leading Private Wealth Advisers, ranked Band 1 in Delaware Private Wealth Law, 2016-2022; ranked Band 1 in Delaware Private Wealth Disputes, 2022.
The Best Lawyers in America, listed in Delaware Trusts and Estates, 2014-2023
The Best Lawyers in America, named a “Delaware Lawyer of the Year” for Litigation - Trusts and Estates, 2018, and for Trust and Estates, 2020
National Association of Estate Planners & Councils, Accredited Estate Planner® (AEP®)
Professional & Civic
American Bar Association (Business Law, Real Property and Probate & Taxation Sections)
American College of Trust & Estate Counsel (Fellow, Fiduciary Litigation Committee, Forms Committee, and Fiduciary Administration Taskforce chair)
The Society of Trust and Estate Practitioners (STEP)
Delaware Bankers Association (2020 Delaware Trust Conference Chair)
Delaware State Bar Association (Estates & Trusts Section (Chair, 2004-2005) and Taxation Section (Chair, 2007-2008))
Estate Planning Council of Delaware (Past President, Past Member of Board of Directors)
The Joshua M. Freeman Foundation (Member of Board of Directors)
Sanford School (Member of Board of Trustees)
National Association of Estate Planners & Councils
Thomson Reuters’ Practical Law (Delaware Estate Tax Contributor)
Trusts & Estates magazine (Editorial Board)
Uniform Laws Commission (Official Observer for the ULC Drafting Committees for the Uniform Directed Trust Act and Uniform Conflict of Laws in Trust and Estates Act, 2022)
University of Delaware Lerner College of Business (Member of Advisory Board for the Trust Management Minor)
University of Maryland School of Law, JD, with honors, 1999
The Business Lawyer, Staff and Associate Editor, 1997-1999
Drexel University, BS, finance, summa cum laude, 1992
- Delaware, 1999
- US District Court for the District of Delaware, 1999
Chambers HNW sources say Todd is “an undisputed expert in fiduciary litigation, high net worth wealth planning, and all other matters regarding Delaware trusts and estates” and “is arguably the best lawyer in Delaware” private wealth law.