USA – NEW YORK Trends and Developments Contributed by: John M. Teitler, Nancy A. Murphy and Constance E. Shields, Teitler & Teitler, LLP
all other legal documents, such as a will, trust or power of attorney. 2.Legal documents – for platforms without online tools, very detailed express wishes in a will, trust or power of attorney will permit access by a fidu- ciary. 3.Terms of Service – absent any online tool, or detailed and express wishes in estate planning documents, the provider’s Terms of Service will dictate access. Planning for access to digital assets For individuals with digital assets, it is important to discuss access and transferability in the event of incapacity and death. The creation of a digital assets inventory can be invaluable to a fiduciary and fam- ily members. Such an inventory should not only list assets, but access methods and storage locations. Password managers with secure sharing options for fiduciaries may also be considered. It may also be helpful to have specific digital asset information stored separately from standard estate planning documents which may become public or used widely. Trust Innovations and Variations Flexibility of trusts for succession planning The usefulness of trusts goes beyond ameliorating taxes. Trusts can be useful in protecting assets from creditors, managing assets, and managing family dynamics. A flexible and well-written trust can ben- efit a family for many generations while protecting the assets from creditors, estate and gift taxes, and spendthrift beneficiaries. Domestic asset protection trusts A number of US states now permit the creation of asset protection trusts, often referred to as domes- tic assets protection trusts or DAPTs. States such as Nevada, South Dakota and Delaware are some of the most popular for this planning due to their long perpe- tuity periods, and well developed trust laws. In a traditional trust, a grantor places assets in trust for the benefit of a spouse or other family members. In many states, a grantor may not place assets in trust and have them protected from their creditors when the grantor is also a beneficiary. However, in states that permit DAPTs, the grantor may place assets in an
irrevocable trust and be a beneficiary while the assets are shielded from future creditors. Despite the grow- ing popularity of DAPTs, courts in states that do not permit DAPTs may decline to recognise the creditor protection of another state’s statute. Creditors may also argue that there was a fraudulent transfer. Private trust companies When undertaking dynastic planning, it is important to carefully consider trustee succession mechanisms. Often there is a desire to appoint individuals or family members known to the grantor of a trust. However, if the trust is designed to last for hundreds of years, a robust system for trustee selection must be designed. The central challenge of long-term trust design is that no individual trustee can realistically serve for the duration of a multi-generational trust. Even corporate fiduciaries may merge, reorganise, or shift strategic direction over time. Accordingly, dynastic trusts must be structured not around a particular person or institu- tion, but around a governance framework capable of adapting to change. A failure to anticipate succession can result in vacancies, court involvement, or unin- tended shifts in control that undermine the grantor’s original intent. One increasingly common solution is the use of lay- ered fiduciary structures. Rather than relying solely on a single trustee, planners may incorporate trust protectors, distribution committees, or advisory roles to diversify oversight and reduce concentration of authority. Trust protectors, in particular, are often granted powers to remove and replace trustees, amend administrative provisions, or change situs in response to legal or tax developments. This added flexibility helps preserve continuity while maintaining accountability across generations. Equally important is the development of objective selection criteria for successor trustees. Instead of naming only specific individuals, trusts may authorise a defined group, such as adult descendants, an inde- pendent committee, or a private trust company board, to appoint successors based on articulated standards of independence, experience, or geographic location. Clear eligibility requirements and removal standards
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