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Trust Protectors: Increased Oversight of Designated Trustees

People who have diverse assets and complex estate planning ambitions have many trust options from which to choose. From basic living trusts and irrevocable trusts to trusts that serve a beneficiary's special needs or the designators' charitable ambitions, a trusts and estates lawyer can explain the advantages of each strategy.

However, an equally important issue for many estate planning clients is the fundamental question of who to "trust" with carrying out your detailed wishes. Increasingly, people with significant or otherwise complex trust ambitions are considering appointment of trust protectors in addition to trustees to ensure that plans are carried out quickly and efficiently in light of evolving circumstances.

Trust protectors can be granted a wide range of powers by the person who sets up the trust, including:

  • Removing trustees and replacing them
  • Expanding on the powers granted to trustees, or imposing new limits
  • Adding beneficiaries, such as children born after the trust grantor's death
  • Resolving trustee/trustee or trustee/beneficiary disputes
  • Amending distribution rules based on changed circumstances
  • Overseeing distribution or investment decisions, including the power to veto improper choices

One important role for trust protectors is making changes to irrevocable trusts, which by definition cannot be altered by the grantor after they are created. In addition, trust protectors can be authorized to make decisions that trustees can only carry out with authorization from the probate court, such as cutting out a beneficiary who has acquired a gambling or drug addiction.

Because this concept in wills and estates law is relatively new, it is subject to evolving legal interpretations in Massachusetts appellate courts. An estate planning attorney can help clients understand their need for enhanced oversight of a trust instrument to avoid the pitfalls of indecisive trustees or the emergence of unforeseen challenges to carrying out the trust's purpose.

Source: "Why You May Need A "Trust Protector", Barrons, 3/3/12

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