Delaware Vs. Texas - Which is Better For Trusts?

By: Jim Dossey, MS, MBA, JD

In certain circumstances, there are advantages of Delaware Trust over a Texas Trust. However, I am always a bit cautious about believing the Delaware hype... a lot of people love Delaware just because it is Delaware (we find the same thing when setting up entities too).

The main differences in my view are the following:

1) Delaware allows for self settled trusts. In Texas, no creditor protection is allowed if a trust is set up this way.

2) Delaware allows for a partial dynasty trust (a trust can last for 100 years for real estate, perpetual for personal property.) Texas follows the rule against perpetuities (21 years after the death of someone living when the interest was created). As a practical matter, there is little practical difference between the two states here because most trusts involve real estate in some way. Also, if someone wants a dynasty trust, there are other states such as Alaska or Nevada that are better.

3) Texas has stronger creditor protection statutes. For this reason, Texas is known as a debtor haven.

4) Delaware has a state income tax whereas Texas does not. That said, if the trust does not have in-state beneficiaries, then the Delaware state tax does not apply.

In summary, Delaware does offer advantages over Texas if you are considering a self-settled trust or a dynasty trust. Other than that, there is little practical difference between the states' trust provisions.

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