Structuring Trust Protector Provisions: Powers & Duties, Trustee Oversight, Tax and Fiduciary Risks

Avoiding Unintentional Fiduciary Classification, Navigating State Differences

A live 90-minute CLE/CPE webinar with interactive Q&A


Wednesday, September 27, 2017 (in 5 days)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT


This webinar will provide estate planning counsel and advisers with a practical guide to structuring trust protector and directing party provisions into a trust or estate plan. The panel will discuss the specific duties to assign to trust protectors, potential risks to both the trustor and the protector, and will detail jurisdictional challenges in determining when to use a trust protector.

Description

Estate planners and trust counsel are increasingly using trust protector provisions in trust documents to preserve the intent of the maker of the trust and resolve disputes between trustees and/or beneficiaries. Trust protector provisions are especially useful in trusts with longer terms.

However, there are variances among states as to the treatment of trust protectors. Estate planning counsel must be aware of tax and fiduciary risks in drafting the provisions to avoid costly consequences.

The duty of trust protectors is to oversee the operation of the trust and the actions of the trustees. In some jurisdictions, trust protectors can modify trusts, make elective distributions, change the situs of the trust and replace the trustee. While no state law defines a trust protector’s powers, there are restrictions and consequences if the powers are not properly structured.

Estate planning counsel must use caution in drafting trust agreements, in identifying the trust protector’s powers, and in designating the extent to which a trust protector serves as a fiduciary. Some states adopt the Uniform Trust Code’s position that a protector owes fiduciary duties absent language in the trust to the contrary. Other states do not presume fiduciary status of trust protectors, unless the trust document provides otherwise.

Listen as our panel of trust and estate planning attorneys provides thorough guidance for structuring trust protectors or directing parties provisions in estate plans.

Outline

  1. Powers that may be granted to a trust protector related to oversight of trustee
  2. Powers that may be granted to trust protectors related to operation or modification of trust terms
  3. Which states have provisions authorizing the appointment of trust protectors?
  4. Determining whether a trust protector is a fiduciary
  5. Trust protector powers that may cause gift or income tax inclusion or loss of GST exemption

Benefits

The panel will discuss these and other important topics:

  • Which states adopt the Uniform Trust Code’s position that a trust protector is a fiduciary unless the trust document specifies differently?
  • What trust protector duties or actions can result in gift or income tax consequences?
  • What are the risks of using trust protectors to either the trust or the beneficiaries?
  • What powers may a trust document grant a trust protector, both in terms of overseeing the trustee’s actions and modifying the terms of the trust?

Learning Objectives

After completing this course, you will be able to:

  • Identify available trust protector powers both in relation to trustee oversight and trust modification
  • Recognize trust protector powers which may create income, gift or GST tax consequences
  • Decide when to use trust protectors based on client circumstances
  • Discern state trends in determining how broad a trust protector’s powers may be and whether a trust protector is a fiduciary

Faculty

Alexander A. Bove, Jr., Partner, Program Chair
Bove & Langa, Boston

Mr. Bove's practice focuses on trusts and estates, with over thirty-five years of experience. His practice encompasses domestic and international estate planning, and he is regularly consulted by attorneys and other profeesionals in issures related to crossborder estate planning. He published seven books, including three law books, including The Complete Book of Wills, Estates and Trusts. He is also the editor and contributing author of the two volume set Asset Protection Strategies published by the American Bar Association. He has written and published over 1,000 articles and is a regular contributor of articles to a number of legal journals.

William Kalish, Partner
Johnson Pope Bokor Ruppel & Burns, Tampa, Fla.

Mr. Kalish focuses his practice on representing individuals and businesses on a broad range of tax and business related issues. He counsels clients on estate planning, creating wills, revocable trusts, irrevocable trusts, charitable trusts, private foundations, and limited partnerships. He also practices in probate administration, asset preservation, business succession planning for family-owned entities, and the division of business interests in the context of divorce. He has over 30 years of experience in the areas of tax and professional ethics.

Susan J. Merritt, Senior Vice President | Senior Fiduciary Officer
Northern Trust, Newport Beach, Calif.

Ms. Merritt is responsible for overseeing all aspects of the Orange County region’s fiduciary practice including oversight of all trust relationships, management and mitigation of fiduciary risk, review of all new trust business, and oversight of all court related matters including administrative petitions and fiduciary litigation. She also works with select Wealth Management clients and their advisors to develop integrated tax and estate plans based wealth management strategies. Prior to joining Northern Trust, she was a practicing attorney with a large business law firm and focused on domestic and offshore tax and estate planning for high net worth individuals.

Elizabeth T. Meck, Vice President | Personal Trust Administration
Northern Trust, Denver

As a member of the Trust Advisory team, Ms. Meck provides fiduciary and legal expertise in the implementation of financial, estate and tax plans for high net-worth individuals, entrepreneurs, and families. Before joining Northern Trust, she practiced as an attorney, specializing in all areas of estate and wealth transfer planning, fiduciary advising, trust and estate administration, and probate litigation. Most recently, she was a member of the Fiduciary Solutions group at Holland & Hart LLP in Denver.


Live Webinar

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CPE on Live Event

Continuing Professional Education credit processing is available for an additional fee per person. You may register for CPE credit processing at any time before or after the program. To qualify for CPE you may not listen via the telephone.

This program is eligible for 1.5 CPE credits.

  • Field of Study: Taxes.
  • Level of Knowledge: Intermediate.
  • Advance Preparation: None.
  • Teaching Method: Seminar/Lecture.
  • Delivery Method: Group-Internet (via computer).
  • Attendance Monitoring Method: Attendance is monitored electronically via a participant's PIN and through a series of verification codes announced throughout the presentation.
  • Prerequisite: Three years+ business or public firm experience at mid-level within the organization, drafting wills and trust documents, supervising other estate planners/accountants. Specific knowledge and understanding of gift tax rules and inter vivos transfer provisions; familiarity with valuation provisions and allocation rules governing trust transfers.

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Estate Planning Advisory Board

Gary D. Altman

Principal and Founder

Altman & Assoc.

Brian M. Annino

Partner

Annino Law Firm

Richard S. Franklin

Member

Franklin Karibjanian & Law

J. Leigh Griffith

Partner and Practice Group Leader - Tax

Waller Lansden Dortch & Davis

L. Paul Hood, Jr.

Consultant, Speaker and Author

The University of Toledo Foundation

Denise L. Iocco

Partner

Windels Marx Lane & Mittendorf

Donna J. Jackson

Atty

Donna J. Jackson, Attorney at Law

Salvatore J. LaMendola

Member

Giarmarco Mullins & Horton

Edwin P. Morrow, III, Esq.

Senior Wealth Specialist

Key Private Bank Wealth Advisory Services

Scott K. Tippett

Atty

The Tippett Law Firm

Susan M. von Herrmann

Partner

Perkins Coie

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