Perpetuities, Taxes, and Asset Protection: An Empirical Assessment of the Jurisdictional Competition for Trust Funds

ANNUAL HECKERLING INSTITUTE ON ESTATE PLANNING, Tina Portando, ed., Vol. 42, Chapter 12, 2008

Harvard Law and Economics Discussion Paper No. 609

33 Pages Posted: 2 Apr 2008 Last revised: 19 Jun 2008

Abstract

This chapter provides an accessible overview of our previous work on the impact of the abolition of the Rule Against Perpetuities (RAP) on trust fund situs. The implementation of the Generation Skipping Transfer (GST) Tax by the Tax Reform Act of 1986 sparked a movement to repeal the RAP. Since 1986, nearly half the states have abolished or effectively abolished the RAP as applied to interests in trust. Prior to 1986, only three states had abolished the RAP. We find no evidence that abolishing the RAP prior to the 1986 GST tax attracted trust business. By contrast, between 1986 and 2003, abolishing states reported an average increase in trust assets of $6 billion (a 20 percent increase). In addition, average account size in abolishing states increased by $200,000, implying that abolishing the rule attracted relatively larger trusts. Our findings imply that roughly $100 billion in trust funds have moved to take advantage of the abolition of the RAP. Further, we can trace these results to the subset of abolishing states that did not levy a tax on income accumulated in trusts attracted from out of state. This finding, which implies that abolishing the RAP does not directly increase state tax revenue, bears on the scholarly debate over the mechanisms of jurisdictional competition. Our analysis also controls for whether a state validated the so-called self-settled asset protection trust (APT). We did not find consistent evidence that validating APTs increases a state's reported trust business, but in the period studied few states had validated APTs, so we draw no firm conclusions.

We conclude that the jurisdictional competition for trust funds is real and intense, with the primary margin of competition being the rules that bear on trust duration, and that the enactment of the GST tax sparked the rise of the perpetual trust. In future work using more refined data, we intend to revisit the jurisdictional competition for trust funds and to expand our inquiry to include directed trustee statutes and the recent reforms to trust-investment laws.

Keywords: rule against perpetuities, jurisdictional competition, regulatory competition, trust funds, estate tax, generation skipping transfer tax, fiduciary income tax, self-settled trust, asset protection trust, wealth transfer taxes, bequest motive, trust modification, trust termination

JEL Classification: C13, D31, H24, H25, H71, H73, K11, K34

Suggested Citation

Sitkoff, Robert H. and Schanzenbach, Max Matthew, Perpetuities, Taxes, and Asset Protection: An Empirical Assessment of the Jurisdictional Competition for Trust Funds. ANNUAL HECKERLING INSTITUTE ON ESTATE PLANNING, Tina Portando, ed., Vol. 42, Chapter 12, 2008; Harvard Law and Economics Discussion Paper No. 609. Available at SSRN: https://ssrn.com/abstract=1095421

Robert H. Sitkoff (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Avenue
Cambridge, MA 02138
United States
(617) 384-8386 (Phone)
(617) 812-6195 (Fax)

HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=649

Max Matthew Schanzenbach

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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