Many modern estate plans incorporate the use of revocable trust agreements to preserve privacy, avoid unnecessary cost and delay and to leave assets for the benefit of loved ones (usually their children) in a trust, instead of free of trust and outright.
People decide to leave assets “in trust” to protect the beneficiary from himself, or to protect the money from the beneficiaries’ creditors, or his or her spouse in the event of divorce (which happens about 50 percent of the time), or to make sure it stays in your family blood line and does not go to in-laws.
Leaving assets “in trust” is a tool that is very valuable if any of the above objectives are desired.
When assets are left in trust, we need to determine who will serve as trustee. The answer often depends on the goal trying to be accomplished.
If one is trying to protect a loved one from his or her own indiscretion such as wasteful spending and frivolous behavior, then you might want to name someone who is more responsible, or perhaps an institution or a sibling with a fixed standard of distribution.
If you are trying to protect assets from equitable distribution in a divorce and generally to keep money in your blood family, it might be advisable to name an independent party, which could be a child’s best friend who would have absolute and pure discretion in making distributions of income or principal.
If the child or loved one who is beneficiary has the ability to fire the trustee for any reason so long as a new independent trustee assumes the role, the asset protection purpose of the trust is best accomplished.
In many cases, we name the beneficiary as the sole trustee. This can provide protection under the law, but if there is an independent trustee, the protection is greater.
There are many considerations in determining who shall serve as trustee of a loved one’s inheritance that is left in trust for their benefit. There is no simple answer. It often comes down to a sibling, friend or professional advisor.
In any event, it is an issue that deserves careful consideration, and the answer often depends on the goal to be accomplished.
Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate planning and elder law attorney. www.mwinnesq.com