Structuring Trust Protector Provisions: Protectors’ Powers and Duties, Trustee Oversight, Tax and Fiduciary Risks

Continuing Legal Education for Attorneys Presented by Strafford Publications, Inc. (July 2022)

Description:

Estate planners and trust counsel are increasingly using trust protector provisions in trust documents to preserve the intent of the maker of the trust and resolve disputes between trustees and/or beneficiaries. Trust protector provisions are especially useful in trusts with longer terms.

However, there are variances among states as to the treatment of trust protectors. Estate planning counsel must be aware of tax and fiduciary risks in drafting the provisions to avoid costly consequences.

Trust protectors must oversee the operation of the trust and the actions of the trustees. In some jurisdictions, trust protectors can modify trusts, make elective distributions, change the trust’s situs, and replace the trustee. While no state law defines a trust protector’s powers, there are restrictions and consequences if the powers are not properly structured.

Estate planning counsel must use caution in drafting trust agreements, identifying the trust protector’s powers, and designating the extent to which a trust protector serves as a fiduciary.

Listen as our panel of trust and estate planning attorneys provides thorough guidance for structuring trust protectors or directing party provisions in estate plans.

Outline:

• Trust protector powers related to oversight of a trustee
• Powers that may be granted to trust protectors related to operation or modification of trust terms
• Determining whether a trust protector is a fiduciary
• Trust protector powers that may cause gift or income tax inclusion or loss of GST exemption
• Drafting effective trust protector provisions to avoid disputes

Benefits:

The panel will review these and other relevant topics:

• Uniform Trust Code’s position that a trust protector is a fiduciary unless the trust document specifies differently
• The Uniform Directed Trust Act’s position that a trust protector is subject to the same fiduciary duty as a trustee in the same position
• What trust protector duties or actions can result in gift or income tax consequences?
• What are the risks of using trust protectors to either the trust or the beneficiaries?
• What powers may a trust document grant a trust protector, both in terms of overseeing the trustee’s actions and modifying the terms of the trust?
• Best practices and key trust provisions to avoid unintended consequences