Following the post-COVID stimulus hangover in 2022, the bull market has continued to run. One of the key factors was the Federal Reserve’s decision to
Can You Trust Your Trustee?
Published Date : October 30, 2018
In the simplest of terms, a trust is a financial arrangement that allows another person, known as the trustee, to hold assets for the well-being of a beneficiary. There are many benefits to creating a trust: privacy, control, legacy protection and tax savings. Once the trust has been created and funded, it is the trustee’s fiduciary obligation to manage the trust assets in a manner that solely benefits the beneficiaries in accordance with the trust terms. But what if the unthinkable happens and the trustee begins to operate in an untrustworthy manner? Does your trust document have safeguards in place that would allow for the removal and replacement of the trustee? If you’re unsure of the protection provided by your own estate plan, now is the time to review your documents and ask your estate planning attorney about the role of a Trust Protector.
Merriam-Webster defines “trust” as “assured reliance on the character, ability, strength, or truth of someone or something.” Your trustee has surely been selected for these very reasons. You believe they have the character, ability and strength to perform the duties required of them long after you’re gone. But therein lies part of the problem. Many irrevocable trusts are designed to preserve family wealth for several generations of beneficiaries. Relationships can change over time and the connection to the original creator of the trust, known as the grantor, and their intentions can be weak, at best. And while most trustees will probably work to honor your intentions for which the trust was created and uphold their fiduciary duty to the beneficiaries, others may not be so principled. The likelihood of them taking off to the Bahamas with trust assets is slim, but they may drain the trust through exorbitant trustee fees or unnecessary litigation with the beneficiaries. Making matters worse, the only way they can be removed is through more expensive litigation. This is where the Trust Protector can come in to save the day.
A Trust Protector is a person or persons named in the trust document to ensure that the grantor’s intentions are fulfilled, and the trust continues to serve the purpose for which it was created. There are currently no powers that are inherently assigned to the role of the Trust Protector and it is subject to the laws of each state, which are evolving. However, keeping an eye on the trustee and terminating for improper behavior should be the main – and maybe the only – job of the Trust Protector. The successor trustee would then be the next in line as spelled out in the trust document. While it might seem counterintuitive that the Trust Protector wouldn’t have more power than this and possibly no fiduciary duty to the beneficiaries, it may be intentional. If the Trust Protector were armed with more powers, they could effectively be named a Co-Trustee and their actions could cause negative gift or estate tax consequences.
Ideally, the Trust Protector – or a committee of trust protectors – should be independent and not related to either the grantor of the trust or the beneficiaries. Their use in irrevocable Dynasty Trust planning could provide the guardrails necessary to stay true to the intentions of the grantor and ensure that the trust lasts for generations as intended.
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