Many people choose to include at least one trust in their comprehensive estate plan. If that includes you, one of the most important decisions you will need to make when creating your trust is who to appoint as your Trustee. In addition, you will need to decide how much discretion your Trustee will have. Toward that end, the Coral Gables trust attorneys at Stivers Law discuss how much discretion your Trustee should have.
Trust Basics
A trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a Settlor, also called a Maker, Grantor, or Trustor who transfers property to a Trustee chosen by the Settlor. The Trustee holds that property for the trust beneficiaries. The beneficiary of a trust can be an individual, an entity (such as a charity or political organization), or even the family pet. A trust must have at least one beneficiary but may have an unlimited number of beneficiaries.
All trusts can be broadly divided into two categories – testamentary or living (inter vivos) trusts. Testamentary trusts are typically activated by a provision in the Settlor’s Last Will and Testament and, therefore, do not become active during the lifetime of the Settlor. Conversely, a living trust activates during the Settlor’s lifetime. Living trusts can be further sub-divided into revocable and irrevocable living trusts. If the trust is a revocable living trust, as the name implies, the Settlor may modify or terminate the trust at any time. An irrevocable living trust, however, cannot be modified or revoked by the Settlor at any time nor for any reason unless a court grants the right to revoke or modify the trust.
Trustee Discretion
As the Settlor of the trust, you create the trust terms. Those terms will be used to administer the trust and will typically cover things such as how assets should be invested, when distributions should be made, and who should benefit from the trust. The Trustee you appoint must follow those terms exactly as they are written unless a trust term is illegal, impossible, or unconscionable.
While the terms you create will be used by your Trustee to administer the trust, a Trustee will almost always need to make some decisions autonomously given the nature of the Trustee’s job. No matter how thorough you are when you create your trust terms, it is impossible to cover every possible scenario and issue that could arise during the administration of the trust. The real question is how much discretion a Trustee needs, not whether to grant your Trustee discretion at all.
To a large extent the type of trust you create coupled with your trust purpose will dictate how much, or how little, discretion your Trustee needs in order to successfully administer the trust. For example, if you are creating a testamentary trust to guard assets for your minor children, the Trustee will likely need a significant amount of discretionary authority to accommodate the unforeseen changes that will occur as your children grow up. Likewise, if you create a revocable living trust as part of your incapacity plan, you will likely appoint yourself as the Trustee and someone close to you as your successor Trustee. Both the type of trust and the trust purpose will probably call for the Trustee to have a significant amount of discretion.
Conversely, if you create an irrevocable living trust for the purpose of protecting assets, your Trustee won’t likely need much discretion given the nature and purpose of the trust. The same is true if you create a Special Needs Trust or a Medicaid Trust. In fact, the more discretion you give your Trustee in some specialized trusts, the more harm you may unwittingly impose on your trust purpose.
Contact Coral Gables Trust Attorneys
For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about how much discretion your Trustee should have, contact the experienced Coral Gables trust attorneys at Stivers Law by calling (305) 456-3255 to schedule an appointment.
Justin serves as a member of the American Academy of Estate Planning Attorneys (AAEPA), a national organization comprised of legal professionals concentrating on estate planning. As a member of the Academy, he receives ongoing, comprehensive training on modern estate planning techniques.
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