Don’t Leave Your Trust Unguarded – Use a Trust Protector!

Department Chair: Eric Gurgold, Esq.

What is a Trust Protector?

A trust protector is someone who serves as an appointed authority over a trust, usually one that will be in effect for a long period of time. Trust protectors can help ensure that trustees maintain the integrity of the trust and make solid distribution and investment decisions, and are often given the power to modify the trust to fit with changes in law and otherwise.

The use of trust protectors originally began with offshore trusts used for asset protection. These trusts are established in foreign jurisdictions where local laws offer attractive creditor protections for citizens of the U.S. Trust protectors are a fairly new and still somewhat uncommon trust feature in the United States, but their use is growing as they allow for maximum flexibility, and help ensure the trust maker’s intentions are carried out.

Florida law expressly allows for the use of trust protectors (called a “trust director” in the Florida Trust Code).

Trust Protector Powers

A trust protector can be given powers that are as narrow or broad as the trust maker desires. While it may be tempting to give a trust protector a wide array of powers to deal with every possible future circumstance, the trust maker should carefully consider the specific purposes and goals for his or her trust and only give the trust protector powers that will further those purposes and goals.

Whenever changes occur, as they are bound to do, one role of the trust protector is to modify the trust to carry out the trust maker’s intent. Significantly, the trust protector can do this without going to court – a key benefit which saves time and money and honors family privacy. A trust protector can help to ensure effective long-term trust administration by:

1. Monitoring trustee actions; removing or replacing a trustee either for misconduct or inability to effectively serve
2. Changing the situs (State) of the trust for tax or other reasons, such as changes in the law
3. Resolving conflicts between beneficiaries and trustee(s) or between multiple trustees
4. Modifying distribution provisions of the trust because of changes in beneficiaries’ lives such as premature death, divorce, drug addiction, disability, or lawsuit
5. Adding new beneficiaries, such as new family members
6. Vetoing potentially impractical investment decisions

Fiduciary v. Non-Fiduciary

If a trust protector is a fiduciary, there is a duty to act in the best interest of the beneficiaries, but and the role of trust protector carries a much higher risk of lawsuits by disgruntled beneficiaries or trustees. To determine whether a trust protector acts as a fiduciary, one must review state law as well as the trust document. If the trust document does not explicitly state whether the trust protector is a fiduciary, the state’s trust code will govern.

For instance, the Florida Trust Code provides that power holders serve as fiduciaries by default. This can be modified in the trust document, but it remains to be seen if a court would hold that a trust protector is always a fiduciary regardless of what the trust says.

These Trusts Benefit Most From Protectors

While virtually all trusts can potentially benefit from inclusion of a trust protector, complex and long-term trusts such as generation-skipping trusts and dynasty trusts benefit the most. Without a trust protector, irrevocable trusts can only be modified by unanimous agreement of the beneficiaries and the trust maker, court order, or decanting. All of these alternatives can be complicated, costly, or cause delays.

Dynasty and generation-skipping trusts are used for many generations and span for hundreds of years or more. Many legislative and family changes can occur over long periods of time, and trust protectors allow for responding to these changes expediently and cost-effectively.

Ideal Selection of a Trust Protector

The best qualifications for a trust protector are training and experience trust and tax law, along with tact in dealing with family dynamics. Ideally, a trust maker will select a party outside of the family who has professional experience in the administration of trusts. This provides a knowledgeable party monitoring trust administration while at the same time avoiding favoritism or hostility among family members.

A trust protector can be an individual, entity, or committee. Depending on the goal of the trust maker, having multiple people on a committee of varying areas of expertise may prove beneficial.

Take-Away

Having served as trust protector on many occasions, and seeing firsthand the actions taken that are highly advantageous to the beneficiaries, I personally recommend use of trust protectors in virtually all long-term trusts. A trust protector may even be able to be added to an existing trust by the use of decanting, or a state’s trust modification laws.

If you should have any questions on trust protectors, please contact me at eric.gurgold@henlaw.com or by phone at 239-344-1162.