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Planning for the future without a crystal ball…

April 19, 2012

When planning for the future, none of us has a crystal ball.  We Imagemust plan our affairs based on current circumstances while trying to anticipate a whole range of possible future events. 

When a couple sits down to plan what they want to happen after their death, they are trying to anticipate events decades down the road.  A couple, each age 50, on average has more than 35 years until the death of the survivor of them.  Who 35 years ago would have predicted the way our society would change and how events would occur into the 21st century?

Of course we must still plan!  We must choose someone we trust to make decisions and to come as close as possible to what we would have done if we were there to make the decisions.  When we leave our assets in a trust, a “trustee” is given the responsibility of managing those assets and carrying out our wishes.  The trustee can be given broad discretion, which he or she can exercise in light of circumstances which we could not have foreseen.

Sophisticated estate planning attorneys even use a concept called a “trust protector” or “special co-trustee” to add even greater flexibility.  A trust protector is an unbiased, unrelated person.  He or she should not be the normal trustee and should not be one of the beneficiaries of the trust.  He or she is given the authority to exercise powers which might cause a problem if the normal trustee exercised them.  For example, if a trust owns life insurance on the life of the normal trustee, the insurance might be taxes to the normal trustee’s estate if he or she exercised powers over the policy.  This tax problem is avoided by using a trust protector. 

Perhaps most importantly, the trust protector can be given the authority to amend the trust or to adjust the trust to unforeseen circumstances.  Most revocable living trusts for married couples use the “family trust” or “credit shelter trust” to use the estate tax exclusion of the first spouse to die.  If there were no estate tax, a family trust or credit shelter trust may be unnecessary.  The special co-trustee would have the authority to terminate the family trust or credit shelter trust and distribute the proceeds to the surviving spouse.  Even if the law does not change, the circumstances of beneficiaries might.  When you are planning your estate, your children might be young and you may not know what their adult needs will be.  You might divide the assets equally among them.  However what if at your death one child is quite wealthy and another child has become disabled? Should both children receive the same in assets?  What if one child is approaching bankruptcy?  Should the assets still be paid out to the child even though they will simply go to his or her creditors?  The trust protector can adjust your plan to respond to these changing circumstances.

Another key responsibility of a trust protector is resolving disputes between the normal trustees.  Often, co-trustees cannot agree on how to manage the trust or make distributions.  The trust protector can serve as an arbiter of any conflicts that might otherwise arise.

Nobody can anticipate how our lives, our society, or our laws might change over the coming years and decades.  A qualified estate planning attorney can help you include as much flexibility as possible so that your plan will bend with the changing times.

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