How much discretion should you give a trustee when you establish a trust for the benefit of one or more beneficiaries?
Trusts are set up for many different reasons. Sometimes people want to leave assets at their death to others, but they don't want the inheritors to receive the inheritance in one lump sum. Some people who leave an inheritance want to dictate what the inheritance is to be used for, and under what conditions they can receive it.
For example, let's say a grandparent wants to leave $150,000 to his grandchild. At the time that the grandparent is establishing his estate legal program through a Last Will or Living Trust, the grandchild is only six years old. So the grandparents is advised to leave the bequest in a trust for the benefit of the grandchild.
One decision the grandparent must make is who should be the trustee of this trust after the grandparent dies. Let's say the grandparent selects grandparent's child as the trustee.
And now the decision comes regarding when distributions can be made to or for the grandchild, from the trust, by the trustee.
When you establish a trust like this, you will make a decision regarding whether you want the trustee to have discretion or no discretion in making trust decisions.
If you choose to allow the trustee to exercise discretion in making distributions, you might include trust language that permits the trustee to make distributions to or for a beneficiary for the "health, education, maintenance, and support," of the beneficiary. This can work well when you have a trustee that you know will exercise that discretion in the best interests of the beneficiary. When you choose this option, you may believe that you don't know what future circumstances may bring, and you trust that the trustee will exercise their discretion in a manner consistent with your overall objectives. Perhaps you even communicate to your trustee during your lifetime how you would want the trustee to exercise their discretion.
On the other hand, you may wish to remove all discretion from the trustee, by providing something like, "I direct the trustee to distribute $1,500 monthly to the beneficiary until trust principal is gone."
Or, you might even get more restrictive by stating that the beneficiary must meet certain standards (GPA, no criminal activity, no drug use, etc.) before distributions can be made. However, the more restrictions you place in the trust, the more difficult it will be for a trustee to adapt to circumstances that may not have been able to have been contemplated at the time of the creation of the trust.
So, granting lots of trustee discretion allows a trustee to use their discretion in a manner that is consistent with your overall objectives, but it may create a situation where a beneficiary is badgering the trustee to exercise their discretion, so you'd need to designate a trustee that has the ability to say, "NO" to a beneficiary when appropriate.
Or, you may choose to eliminate trustee discretion by imposing specific restrictions in the trust that must be met for distributions to be made.
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Louisiana Estate Planning Attorney
Phone: (225) 329-2450