Trusts & Estates/Private Client

PDF

Morris Nichols is nationally known for the strength of its Trusts & Estates/Private Client practice. We advise a broad range of clients in connection with trusts, estate planning and administration, and fiduciary litigation. We also have a market leading practice advising banks and trust companies in the highly specialized area of Delaware trust law. Chambers High Net Worth (HNW) has ranked our practice in Band 1 among Delaware private wealth law firms, with sources touting the group’s reputation as "one of the leading firms in Delaware,” and the “first point of reference” on Delaware trust law. 

Delaware Trust Counsel

We work as Delaware trust counsel with many of the world’s largest financial institutions and law firms. They turn to us because of our deep roots within the Delaware bar and our lawyers’ ongoing involvement in the development and updating of Delaware’s trust laws. Morris Nichols advises clients on the process of creating Delaware trusts, migrating trusts to Delaware, and modifying, administering and terminating trusts.  We also work on matters involving petitioning the Delaware Court of Chancery, decanting, trust mergers, legal opinions, releases, and all areas of trust administration.

Estate Planning & Administration

With years of experience implementing our clients’ tax and wealth transfer strategies, we work with clients in achieving their estate planning goals. We regularly assist clients with complex planning strategies such as grantor retained annuity trusts (GRATs), installment sales to intentionally defective grantor trusts, dynasty trust planning, charitable gifts, qualified personal residence trusts, qualified domestic trusts, special needs trusts, and sophisticated life insurance planning techniques. In addition, we work with the personal representatives of Delaware estates, helping them navigate the Delaware probate process and related tax and administrative issues.

Trusts & Estates Litigation

Morris Nichols has been at the center of many of Delaware’s most important trusts and estates cases. Our team is comprised of lawyers who have a deep understanding of Delaware’s highly specialized trust laws and who have represented individual and corporate trustees, as well as beneficiaries, charitable organizations and executors in all types of trusts and estates litigation.

We have represented individual and corporate trustees, as well as beneficiaries, charitable organizations and executors in all types of trusts and estates litigation including, for example: defense of directed trusts, choice of law issues, breach of trust, capacity, undue influence and validity challenges, construction of governing instruments, removal of trustees, creditor claims, and trustee compensation.  We have extensive experience in both Chancery Court and Delaware Supreme Court cases and handle every stage of litigation from pre-litigation fact review and counseling to settlement negotiations, trial, and appellate proceedings.

Non-Profits

Our lawyers represent all forms of non-profit entities. We work with public charities, foundations and other non-profits in handling the process of forming the charitable entities and qualifying them as tax-exempt organizations. We also advise non-profit boards on regulatory and compliance issues.

News

Insights

  • Client Alert, 09.16.2020

    Delaware Governor John C. Carney has signed House Bill 334 into law (“Trust Act 2020”), which further improves upon Delaware trust law. 

  • Article, Delaware Banker Magazine, Spring 2020

    One of the many significant developments in the field of trust lawover the past decade has been the increasing popularity of so called “silent trusts”. The term “silent trust” generally describes an arrangement in which a trustee is prohibited under the terms of a governing instrument from providing information to the trust’s beneficiaries, or where the trustee is relieved from its common law duty to provide information to beneficiaries, so that information is only shared when it’s deemed appropriate.

  • Article, 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.

  • Client Alert, 03.20.2020

    As we collectively respond to the Coronavirus (COVID-19) outbreak in our country, many have turned their attention to completing estate planning documents. Because clients, especially seniors, are socially-isolated and unable to obtain witnesses and notarization of signatures, we have been fielding numerous questions about the legal requirements for validly executing Delaware trust agreements.

  • 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.

  • Client Alert, 07.18.2019

    Delaware Governor John C. Carney has signed House Bill 72 into law (“Trust Act 2019”).  The legislation further improves and modernizes Delaware trust law.

  • Article, Delaware Banker Magazine, Spring 2019

    The U.S. Supreme Court will soon render a decision that could have a significant impact on the manner in which some states tax income accumulated in nongrantor trusts.

  • 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.

  • 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.

  • Client Alert, 09.18.2018

    Recently enacted legislation (“Trust Act 2018”) provides settlors, beneficiaries, fiduciaries and nonfiduciary powerholders with an even greater ability to accomplish their objectives using Delaware trusts.

  • Client Alert, 09.12.2017

    On August 30, 2017, Delaware Governor John Carney signed House Bill 169 into law (“Trust Act 2017”), which provides settlors, beneficiaries and fiduciaries of Delaware trusts with more tools and greater flexibility to confidently accomplish their various objectives.

  • Client Alert, 08.09.2017

    On June 21, 2017, the Delaware Supreme Court affirmed a landmark decision by the Delaware Court of Chancery (the “Court”) that found an “adviser,” within the meaning of 12 Del. C. § 3313, liable for breach of his fiduciary duties.  This decision is especially noteworthy because it provides significant insight into the Court’s views with respect to the willful misconduct and bad faith standards of liability as well as the application of virtual representation principles to the statute of limitations defense.  While we previously summarized the Court’s substantive analysis of these issues when the Master’s Draft Report was issued in 2014, and again when the Master’s Final Report was issued in 2015, the long and somewhat complicated history of this case and the weight of its importance warrant additional presentation of its analysis.

  • Client Alert, 08.07.2017

    On July 2, 2017, Delaware Governor John Carney signed into law House Bill No. 16, as amended, repealing Delaware’s estate tax for decedents who die after December 31, 2017.  The repeal of Delaware’s estate tax will provide a substantial benefit to not only Delaware residents with taxable estates but also the estates of many nonresidents who die owning real or tangible personal property located within Delaware.

  • Client Alert, 05.19.2017

    The Delaware Supreme Court decided a case this week that is of great importance to Delaware trust law involving the enforceability of a spendthrift provision and the protection of trust assets against the claims of a beneficiary’s creditors relating to breaches of fiduciary duties by the beneficiary which arose in a separate but related action.  This opinion is notable because it is a strong confirmation of the protections available to beneficiaries of third-party spendthrift trusts in Delaware under Section 3536 of Title 12 of the Delaware Code (“Section 3536”).  Importantly, the Delaware Supreme Court has affirmed the narrow application of the Garretson case and, in doing so, we are provided with helpful analysis as to the rationale of the holding in Garretson and related cases.  The Court refused to create a public policy exception to Section 3536 for a tort claimant who was a family member of the plaintiffs and who allegedly persistently engaged in a course of conduct that breached his fiduciary duties resulting in millions of dollars of damages for plaintiffs.  This opinion will likely have importance around the country considering the paucity of case law on the subject and the relevance of the Delaware Supreme Court.  While we previously summarized the substantive analysis of this case when the Draft Master’s Report of the Delaware Court of Chancery was issued in 2014, the long history of this case and the weight of its importance warrants additional presentation of its analysis.  The procedural history of this case is somewhat long and complicated, but is also notable for its exemplary judicial process and expediency.

  • Article, Delaware Banker Magazine, Spring 2017
  • Article, Trusts & Estates Magazine, 03.2017
  • Client Alert, 10.28.2016

    PLR 20146014 addressed all of the rulings relevant to the tax structure of a so-called DING trust, except that there is one major factual difference upon which the IRS ruled.

  • 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.

  • Client Alert, 05.07.2015

    Two Master’s Final Reports were issued in Mennen v. Wilmington Trust Company on April 24, 2015.

  • Client Alert, 02.18.2015

    The Delaware Supreme Court issued an order affirming a bench ruling and letter opinion of the Court of Chancery precluding an action to contest the validity of a trust under Delaware’s pre-mortem validation statute, 12 Del. C. § 3546.

  • Client Alert, 10.01.2014

    The Delaware Supreme Court recently issued an order denying an interlocutory appeal of the opinion of Delaware Court of Chancery (the “Chancery Court”) in IMO Daniel Kloiber Trust U/A/D December 20, 2012 (“Kloiber”).

  • Client Alert, 10.01.2014

    Master LeGrow of the Delaware Court of Chancery (the “Court”) issued a draft report (the “Draft Report”) granting a defendant’s motion for summary judgment upholding the enforceability of a spendthrift clause under Delaware’s spendthrift statute, Section 3536 of Title 12 of the Delaware Code (“Section 3536”). The Draft Report is notable because it is a strong confirmation of the protections available to beneficiaries of third-party spendthrift trusts under Section 3536 and the Court refused to create a public policy exception to Section 3536 for a tort claimant who was a family member of the plaintiffs and who allegedly persistently engaged in a course of conduct that breached his fiduciary duties resulting in millions of dollars of damages for plaintiffs.

  • 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, 11.01.2011

    UPDATES for 2011- How to take advantage of Delaware’s directed trusts statute and other attractive Delaware statutes, Delaware creditor protections, Delaware dynasty trusts, Delaware Chancery Court supervision, and considerations when changing a trust situs to Delaware.

  • Article, 06.29.2011

    J. Zachary Haupt, “If You’re Incorporated in Delaware, You Can Be Sued in Delaware, Federal Judge Says,” Del. Bus. Ct. Insider (June 29, 2011)

  • 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)

    Download PDF

Practice Contact

Chambers HNW 2020 Recognizes Morris Nichols in Band 1 for Delaware Private Wealth Law

Speaking highly of the Trusts, Estates & Tax team, one source says, “They have a real emphasis on being creative in their approach to trust structures.”MORE

The Morris Nichols Delaware Trust Law Companion

The Companion compiles numerous source materials, including select provisions of Delaware’s trust law and Chancery Court rules. MORE

Jump to Page

We use cookies on this website to improve functionality and performance, to analyze traffic to the website, and to enable social media features. By using this site, you agree to our updated Privacy Policy and our Terms of Use.