A Trust Protector is authorized to do several tasks ranging from making specific changes in the Trust so that it conforms with the Grantor’s Intent to solving unexpected problems. This can include correcting typos and removing or adding beneficiaries as families change.
A person with no vested interest, usually the attorney who drafted the Trust, is named the Protector. There are several reasons why having this provision in a trust is essential.
Protecting the Grantor’s Intentions
A well-drafted trust protector clause can save beneficiaries from losing their inheritance to creditors, divorce, or other catastrophic circumstances. For example, suppose your beneficiary loses their job or moves to another state with different laws or public benefits systems. In that case, the trust protector can amend the Trust to ensure they can still receive the benefit intended by the Grantor.
Depending on how your Trust is drafted, the Trust Protector can have powers to remove and replace trustees (though you must talk to your estate planning attorney to determine exactly what kinds of capabilities you want them to have). The trust protector role can also change the Trust’s location and the Trust’s governing law. It’s best not to give the Protector the power to appoint new trustees or successors, however, since they could end up undermining the original intent of your Trust.
Having someone to watch over your assets after you are gone is vital to protecting your legacy and fulfilling your wishes. A professional can be the ideal choice to serve in this role, as they’ll have the time and the knowledge to ensure that everything is handled correctly and that your Trust’s goals are fulfilled. This is especially important when it comes to dynasty trusts and long-term asset protection trusts.
Providing Flexibility to the Trust
Many of our clients create trusts intended to stay in effect for generations. This type of long-term planning necessitates a Protector who can monitor the activities of the Trustee, make decisions, and resolve problems that may arise over time and were not anticipated when the Trust was created.
For example, when a beneficiary gets divorced or develops an addiction, the Trust Protector can amend distributions to that person or remove them entirely from the Trust. Likewise, as grandchildren and great-grandchildren are born, or family relationships change, it may be necessary to add them as beneficiaries of the Trust. The power granted to the Trust Protector must be drafted in a way that makes this possible without giving them too much authority.
In addition, it is sometimes desirable to grant the Protector the power to monitor the activities of the Trustee. This can help protect the Trust from misbehavior the beneficiaries might not notice, such as a Trustee who milks the Trust for fees.
Similarly, some people give their Protector powers to designate the successor Trustee. This is a good idea only if you trust the Protector and are not concerned that they will “team up” with a buddy and loot the Trust.
Monitoring the Trustee’s Activities
Irrevocable trusts are an excellent way to preserve assets for heirs while avoiding probate, estate taxes, and protection from creditors. However, they require the Grantor to give up control of their support, and the trustees are responsible for managing and controlling these assets. To prevent misbehavior, a Trust Protector can be named in the Trust to monitor the trustees’ activities and ensure they are fulfilling their duties.
If a trustee becomes unresponsive, fails to manage the Trust according to its terms, or is found to be milking the Trust for fees, a Trust Protector can be given the power to fire that Trustee and replace them with a new one. This can save the beneficiaries a lot of headaches and expenses because they would not have to fight in court against the misbehaving Trustee and spend their own money on legal fees to defend themselves.
Depending on the language of the Trust, the Trust Protector can be granted other powers to change the Trust or its beneficiaries. For example, a Protector can remove and replace family members as trustees or co-trustees, resolve disputes between the trustees, or even add and subtract beneficiaries from the Trust. This can allow the Protector to make necessary changes to keep the Trust relevant as situations and relationships change over time.
Taking Advantage of Tax Law Changes
When you make a trust, you likely want to ensure that your family can take advantage of the tax benefits available to them. However, changes in the law can occur, and if you don’t change your plan to reflect those changes, it could result in lost opportunities. A trust protector can be a great way to avoid this problem and ensure that your family’s plans are up-to-date.
Depending on the language in your Trust, a protector may have minimal powers or sweeping ones, which you should discuss with your estate planning attorney when creating your Trust. Generally, giving a protector the ability to remove and replace trustees is not a good idea because this could lead to the Protector taking control of your assets and potentially looting them. Your trust document should also typically exclude any beneficiaries under the Protector’s thumb so they cannot take advantage of their position.
Adding a protector to your irrevocable Trust can help protect your inheritance from creditor claims, divorce, death, and even bankruptcy. It’s essential to speak with your financial planner, estate planning attorney, and tax expert to ensure that you’re putting together a complete team of professionals to help ensure that your family’s future is secure.
