Probate & Trust Law Section Conference Manual ... - Minnesota CLE

8. PRIVACY
Privacy is a high priority for clients and an important consideration for asset protection
planning. 211 Most states keep trust matters public with few exceptions. South Dakota has a
comprehensive privacy statute for trust matters, i.e., total seal forever. 212 Delaware will seal trust
information for three years in select cases, then open it to the public. 213
9. COURT AWARD OF ATTORNEYS’ FEES IN A TRUST CONTEST
Some state statutes will award attorneys’ fees in a trust contest. The trust statutes of South Dakota
and Delaware provide that a court may award attorneys’ fees and costs to any prevailing party. 214
Consequently, the trustee can be reimbursed for attorney fees if the plaintiff loses in South
Dakota. 215 Nevada is slightly different in that only if the petitioner wins, then the court may
award attorneys’ fees. 216 The Nevada statute appears to only permit a court to award attorneys’
fees and costs to a prevailing petitioner, thus if the trust was sued by a beneficiary or a creditor,
and the trust prevailed, permissible attorneys’ fees under this section may not apply. 217 In Alaska,
if a trust is voided or set aside, the court may award attorney fees (with reference to civil code
award of attorney fees). 218 Thus, somewhat similar to Nevada, an Alaska court may award
attorney fees only if the petitioner wins and the trust is voided or set aside. 219 This would
presumably apply to a creditor. Please note these apply to the trust statutes and not the states’
civil procedure.
10. BENEFICIARY NOTICE
Many families do not want the trust beneficiaries to know of the existence of a trust or the trust
assets. Consequently, many state’s statutes allow the grantor to modify the notice requirements or
for the beneficiaries to waive notice. For example, Alaska allows a grantor to exempt the trustee
from the notice requirements, but only for the life of the grantor or until the grantor’s incapacity,
whichever is shorter. 220 South Dakota allows for beneficiary waiver of notice, but also provides
that the grantor, trust advisor or trust protector, by the terms of the governing instrument, may
expand, restrict, eliminate, or otherwise modify the rights of beneficiaries to information relating
to a trust. 221 Nevada and Delaware are not as broad; neither expressly allow for a trust advisor or
protector to modify notice to beneficiaries. 222
211 See Privacy of Court Records, Section VI.
212 SOUTH DAKOTA CODIFIED LAWS § 21-22-28.
213 DEL. CH. CT. R. 5.1.
214 S.D. CODIFIED LAWS § 55-16-13; DEL. CODE ANN. tit. 12, § 3584.
215 S.D. CODIFIED LAWS § 55-16-13.
216 NEV. REV. STAT. § 153.031.
217 NEV. REV. STAT. § 153.031.
218 ALASKA STAT. § 13.36.310; ALASKA STAT. § 09.60.010.
219 ALASKA STAT. § 13.36.310; ALASKA STAT. § 09.60.010.
220 ALASKA STAT. § 13.36.080.
221 SOUTH DAKOTA CODIFIED LAWS § 55-2-13.
NEV. REV. STAT. § 155.010; DEL. CODE ANN. tit. 12, § 3534.
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