Presenting a live 90-minute webinar with interactive Q&A Trust Protectors in Estate Planning: Benefits and Risks Evaluating Their Role, Use, Selection, and Powers in States With and Without Trust Protector Statutes THURS DAY, JUNE 7, 2012 1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific Today’s faculty features: Alexander A. Bove, Jr., Part ner, Bove & Langa , Bost on Gregory F . Monday, Part ner, Foley & Lardner , Madison, Wis. Mary A. Akkerman, Part ner, Lindquist & Vennum , S ioux Falls, S .D. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Trust Protectors in Estate Planning: Benefits and Risks Thursday, June 7, 2012, 1:00 – 2:30 p.m. EDT History and Role of the Trust Protector Alexander A. Bove, Jr., Esquire Bove & Langa, P.C. 10 Tremont Street, Suite 600 Boston, MA 02108 bove@bovelanga.com www.bovelanga.com
The Trust Protector What, Where, and Why? What: A fair definition of a Trust Protector is, “A party who has powers over a trust but who is not a trustee.” And see, e.g., Nevis International Exempt Trust Ordinance 1994 §9(1) “‘protector’ in relation to an international trust means a person who is the holder of a power which when invoked is capable of directing a trustee in matters relating to the trust and in respect of which matters the trustee has a discretion and includes a person who is the holder of a power of appointment or dismissal of trustees;”. The first Trust Protector came from the Cook Islands, with a similar definition. See, e.g., Cook Islands, International Trusts Amendment Act 1989, Part IV, §20. 6
The Trust Protector Where: Most commentators and practitioners assume the origin lies with offshore trusts. This is misleading. Look at the definition of trust “advisor”. See, e.g ., Trust Advisors , 78 Harvard Law Rev. 1230 (1965); “A trust advisor is a person who has power to control a trustee in the exercise of some or all of his powers.” 7
The Trust Protector Why: Onshore clients were made to feel comfortable with “indirect control” of their money thousands of miles away. Again, the comfort level of clients. Avoid court involvement where circumstances of the laws change. Near total flexibility in an irrevocable trust. 8
TRUST PROTECTORS IN ESTATE PLANNING: BENEFITS AND RISKS Pros Cons Attorney Gregory Monday Foley & Lardner LLP Madison, Wisconsin (608) 258-4211 gmonday@foley.com 9
TRUST PROTECTORS: BENEFITS 1. Effective Allocation of Powers/Duties – examples: ● Bookkeeping/Compliance: Corporate fiduciary. ● Investment of Marketable Securities: Corporate fiduciary or its agent. ● Voting/ Disposition of Family Business Interests: Senior family member(s); active family member(s); family council; professional advisor(s) familiar with family and business. ● Distribution Decisions: Non-beneficiary family member or professional advisor(s) familiar with family (such as for beneficiary who is disabled or substance abuser). 10
TRUST PROTECTORS: BENEFITS 2. Checks and Balances – examples: ● Oversight of Trustee: — Trust protector can remove/replace trustee. — Trust protector or beneficiaries can bring claims against trustee. ● Oversight of Family Business Management: — Directors can remove/replace executives. — Trust protector can remove/replace directors. — Trustee or trust protector can bring claim against directors/executives. ● Oversight of Trust Protector: — Beneficiaries, family council, or other can remove/replace trust protector. — Beneficiaries or trustee can bring claims against trust protector? 11
TRUST PROTECTORS: BENEFITS 3. Flexibility – examples: ● Substitution of Settlor’s Judgment: Powers that corporate fiduciaries should not have, do not want, or could not exercise without court approval, such as amendment, termination, change of situs/law, decanting. ● Longevity: Provide system of self-sustaining trust management over multiple generations (GST). ● Unexpected Developments: Address unexpected developments in family, charities, tax law, state law, and/or family business without going to court. 4. Others from co-Panelists? 12
TRUST PROTECTORS: RISKS 1. Dilution/Confusion of Responsibilities . ● Appointment of trust protector reassigns duties away from paid trustee to third party who: — may be less involved; — has less formal role; — may have no stake in the trust; and/or — may be asleep at the switch. ● Some responsibilities may fall between assignments – for example, who has authority to exercise trust’s right to bring derivative claim as family business shareholder? ● Trustee and trust protector may have different agendas: interests of beneficiaries vs. intentions of settlor. 13
TRUST PROTECTORS: RISKS 2. Legal Uncertainty. ● Wide variation under state statutes. — TP presumed to be fiduciary (Idaho, South Dakota) — TP presumed not to be fiduciary (Alaska, Arizona) — TP is a fiduciary (Michigan, New Hampshire) ● Case law uncertain. ● Commentators disagree. ● Many trust protector provisions not sufficiently detailed. 14
TRUST PROTECTORS: RISKS 3. Too Much Power/Lack of Accountability. ● Trust protectors are often exculpated in documents or under state law to make them freer to be substitutes for settlor or to induce them to serve/act. ● Result can be substantial power in trust protector without rights of trustee or beneficiaries to oppose decisions or seek remedies for “wrongdoing”. ● Without fiduciary standards, wrongdoing cannot even be defined with respect to trust protector’s actions; even conflict-of-interest transactions may be permissible. 15
TRUST PROTECTORS: RISKS 4. Cost and Complexity. ● To ensure engagement, how much should trust protector be compensated? ● To prevent problems described above and to sustain utility over multiple generations, trust protector provisions and mechanisms must be detailed and perhaps complicated. 5. Others from co-Panelists? 16
TRUST PROTECTORS IN ESTATE PLANNING: WHO SHOULD SERVE? Settlor hereby names Jane Doe to serve as Trust Protector, but if Jane, for any reason, shall refuse or shall cease to serve as Trust Protector hereunder . . . Attorney Gregory Monday Foley & Lardner LLP Madison, Wisconsin 17 (608) 258-4211 d @f l
TRUST PROTECTORS: WHO SHOULD SERVE? 1. Qualities: ● Special knowledge of settlor, beneficiaries, investing and financial services, family business, or other. ● Professional qualifications, licensing, or experience. ● Neutral and objective (e.g., lawyer); or engaged and interested (e.g., beneficiaries). ● Reliable, responsible, insured(?). ● Who may not serve (e.g., employees, spouses, creditors). ● Board or council of trust protectors. ● Other (panelist input). 18
TRUST PROTECTORS: WHO SHOULD SERVE? 2. Mechanism to Perpetuate. ● Especially important in generation-skipping trusts. ● Trust protector to appoint own successor. What is back up plan? ● Trustee or beneficiaries to appoint successor. What is their agenda? ● Set parameters on who can serve. (See previous slide.) 19
TRUST PROTECTORS: WHO SHOULD SERVE? 3. Mechanism to Remove. ● Accountability vs Authority. ● Does removal power create adversarial relationship between trustee or beneficiaries and trust protector ? Does it give remover leverage against trust protector action? ● Power to remove and power to replace can be vested in different parties. ● Specify standards and formal procedure for removal. 20
P OWERS AND D UTIES Mary A. Akkerman 21 Lindquist & Vennum (605) 978-5204 makkerman@lindquist.com
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