REALITIES OF THE TRUST SITUS MARKETPLACE
By Philip J. Hayes, Esq.1 * Kay E. Henden, Esq. **
Few estate planning developments have generated as much or as heated controversy as the relatively recent domestic "forum shopping" for trust situs. States that have entered the situs selection contest have enlisted trust companies, home-state attorney and even academics in the marketing effort, resulting in a proliferation of materials pertaining to situs and the benefits of selecting State X over State Y. One South Dakota law review article2went so far as to promote a new tort – "negligent trust situs" – for the hapless California attorney who makes the mistake of choosing California situs over South Dakota.
Opponents of the practice, on the other hand, contend that many of the comparative law articles are authored by persons with vested interests and should be understood in that context. They hold that this body of work contains some misleading or even inaccurate information, and subtly preys on the fears of trustors and their attorneys.