Your estate plan undoubtedly includes trusts that will continue for the benefit of your spouse’s lifetime and then for the benefit of several generations of your family. Implementing and maintaining trusts that will cover the administration, investment, and distribution of trust property over the span of multiple decades is challenging and generally requires you to have flexibility in your trust agreements. In this issue you will learn five ways that flexibility can be incorporated into your trust agreement.
- Powers of Appointment Can Add or Eliminate Beneficiaries
If you are concerned about how your children, grandchildren, or even great grandchildren will eventually grow up, you can build flexibility into a dynasty trust by giving your spouse or other beneficiaries the ability to include or exclude heirs through the use of powers of appointment. A power of appointment is also important if a trust is designed as a dynasty trust but the beneficiary fails to have children, and it can also be used to include or exclude charitable beneficiaries.
Planning Tip: Powers of appointment at each generation should be considered when creating a trust that is intended to last for decades into the future. In many cases, the powers can be as limited or as broad as you desire without creating any gift tax or estate tax problems.
- Trust Decanting Takes Something Old and Makes it New
Trust decanting involves taking the funds from an existing trust and distributing them to a new trust that has different and more favorable terms. Decanting should be included in your trust agreement because it allows the following:
- Tweaking trustee succession provisions.
- Converting a trust that terminates when a beneficiary reaches a certain age into a dynasty trust.
- Changing a support trust into a full discretionary trust so that a beneficiary’s creditors cannot reach the trust.
- Clarifying ambiguities or drafting errors in the trust agreement.
- Changing the governing law or trust situs to a less taxing state.
- Modifying powers of appointment.
- Merging similar trusts into a single trust or creating separate trusts from a single trust.
- Adjusting the trust terms to provide for a special needs beneficiary.
Planning Tip: You may be concerned that building decanting provisions into your dynasty trust will defeat your long-term goals and intent. Nonetheless, without building any flexibility into your trust agreement from the beginning, it is likely that your heirs will end up in court to fix a trust that no longer makes practical or economic sense.
- Trust Protectors Can Fix Just About Any Problem
A trust protector is an individual or entity that is empowered to see that your wishes are ultimately fulfilled. A trust protector’s duties can be as limited or as broad as you choose. In essence a trust protector can be given the power to modify the terms of a trust without necessarily having to decant it and to address unforeseeable events such as changes in tax laws or family dynamics.
Planning Tip: Of any of the options you can include in your trust agreement to insure flexibility, a trust protector is in and of itself the most flexible. This is because a trust protector can be given the right to appoint, remove and replace trustees; include or exclude beneficiaries; adjust powers of appointment; and decant the trust into a new one. Therefore, trust protector provisions should be included in all of your trust agreements.
Are Your Trust Agreements Flexible?
Unfortunately trust agreements that are more than a few years old usually lack flexibility provisions for allowing the trust terms to be adjusted as the needs of the beneficiaries and governing laws change. The good news is that modern trust law contemplates these changes and can be invoked to fix an old trust that has gone awry.
If you are interested in learning how to build flexibility into your revocable trust or how to modify an existing irrevocable trust, please contact us.