The seven steps in this series will guide you through the process of building a working outline for a thoughtful and successful trust document. Here is a refresher on what we covered in Part 1: In Step 1, we started with Why – figuring out your main purpose or motivation for including one or more trusts in your estate plan. In Step 2, we worked on the Who – listing and describing the people (and possibly charities) your trust will benefit.
Step 3 – Decide How Much & When
Next, we will cover how your estate plan will express the amount and frequency of distributions from the trust to your beneficiaries. The goal of this step is to determine how you would like the trust assets to be paid out. This does not have to be perfect right off the bat. You’ll refine this in time. To help you get started, let’s review some vocabulary (just for a minute). Historically, trust distributions have been described in terms of income and/or principal. (Click on those words to see the Glossary definitions. Go ahead, I’ll wait. If you want more detail on income, principal, mandatory and discretionary distributions, take a look at The Two Types of Trust Distributions.)
Another option – in recent years, the concepts of income and principal have sometimes been tossed aside in favor of a “unitrust” approach. This format directs the trustees to pay a fixed percentage, say 3% of the trust’s assets to the beneficiary each year, based on a selected valuation date. This approach frees the trustee from having to think about how to invest to produce income and grow principal at the same time. The trustee can focus on growing the principal, and distributions will be a percentage of that (hopefully) forever growing amount.
These are the traditional approaches. But there is no right answer. You may have a good idea about how you’d like trust distributions to be made. Or maybe you’d like to think about it awhile. Either way, look back at your purposes and motivations behind the trust (the Why, from Step 1). Your Why will provide guidance here.
For example, if a primary purpose of the trust is asset protection, you’ll want to grant your trustees broad discretion in deciding whether or not to distribute to a beneficiary. You would not include any mandatory distributions or permit the beneficiary to withdraw from the trust. Leaving all of the discretion with the trustee would achieve the creditor protection goals. But, this leaves the kids (or spouse, or grandkids, etc.) very little say. On the other hand, if you intend the trust as more of an opportunity-enhancer or family bank, to provide liberal funding for “ventures or adventures,” you may give your beneficiary more control.
- The trustee may be required to distribute all trust income to the beneficiary quarterly;
- The beneficiary may have the ability to withdraw, say, 5% of the trust principal per year; or
- Perhaps the beneficiary will receive chunks of principal at stated ages (1/4 at 30, 1/3 at 35, 1/2 at 40, etc.).
These techniques would give your beneficiary a few different “bites at the apple.” You might decide this is a great way to educate and encourage responsibility. However, a trust with all of these features would make a very poorly executed asset protection trust. The mandatory distributions and withdrawal rights would leave gaping holes for creditors and predators. Of course, there are ways to combine multiple purposes and techniques. Your attorney can help you balance the competing interests. So, quickly writing down what your thoughts are on distributions, while keeping in mind your primary motivations, will be very helpful to you and the drafter.
Step 4 – Think About Building in Flexibility
Try as we might, we can’t see into the future with certainty. Even worse, research has consistently shown that one of our worst flaws as a species is having way too much confidence in our ability to do just that. Even the shortest of trusts are usually expected to last a half-to-a-whole lifetime. And many trusts drafted today are expected to last hundreds of years (for example, Dynasty Trusts). There is simply no way to anticipate or even imagine what our carefully designed trust plan is going to look like 50, 100, 200 years from now. That’s why flexibility is so important. The best trust agreements don’t try to anticipate any and all circumstances. Rather, they accept that things will change. You need to give the people – trustees and beneficiaries – who are going to be there way into the future, the tools they will need to adapt to change. Fortunately (or unfortunately*), the law has evolved in this area, and those tools can be built into the trust agreement. Some examples are:
- Powers of appointment, which enable the beneficiaries to alter the default rules for splitting up and paying out the trust property following their deaths, allowing them to consider the needs of their children in thinking about how the trust will impact their lives;
- Trust protectors, who can be given the power to alter or amend the trust agreement, or to intervene in and mediate disputes, or even to fire trustees, all under circumstances spelled out in the trust agreement;
- Amendment powers, also detailed in the trust agreement, to be used in certain circumstances; and
- Powers granted under state law, such as court or “no-court” trust agreement modification procedures, and – the latest rage – decanting.
*Note – this evolution of the law is not without controversy. Some legal scholars and practitioners believe that these new flexibility tools are in fact unfortunate. This group is concerned that all of this flexibility makes it near impossible to guarantee that the trust creator’s intent will be carried out exactly. The response to this argument is that a well-designed trust permits flexibility but adheres to the guidance provided by the trust creator. That’s why providing this guidance is also imperative (see below). Of course, the trust creator who believes he has anticipated the beneficiaries’ every need 100 years from now is free to prohibit any of these flexibility devices in the trust agreement. (Is my bias showing? Remember, 100 years ago, the federal income tax was born, women were struggling to gain the right to vote,and Ford was putting the finishing touches on something called an “assembly line.”)
Wrapping Up Part 2
As noted at the end of Part 1, don’t worry about all these details now. Just jot down a quick list of the concepts and ideas that appeal to you, and those that don’t. Once you put all the parts together, you’ll have a pretty clear picture of how you and your attorney can build your trust. In Part 3, we’ll look at who’s in charge of this whole plan – the trustee – and provide guidance on how to select the right one. Stay tuned!