How can anyone guarantee what the future holds?
Even great estate planning doesn't promise that.
The best and the most-skillful estate plan can anticipate the usual occurrences that happen in life and put in place mechanisms to deal with unintended and unexpected events.
Humans have been around for a long time so there are events, actions, and happenings in life that everyone most likely will experience. If nothing else, everyone dies.
Death is the ultimate risk of life. Its occurrence is once, and the severity is 100%.
That’s where estate planning comes in to play. Effectively, an estate plan is a sophisticated form of risk management.
Lawyers, accountants, banks, insurance companies, appraisers, and many certified professionals of one kind or another provide services to solve potential problems that arise from birth, through life, to death, and for some, the generations to come.
Estate planning is a huge industry devoted to anticipating and solving the human dynamic, legal, financial, and even emotional issues likely to occur because we understand they happened to people throughout history.
But life has its twists and turns. Circumstances change. Sometimes rapidly. Even the best planning likely will need alternate courses of action to meet future unexpected circumstances.
Clever estate planners, long ago, developed the use of trusts just for this purpose. They are a flexible, effective mechanism to instruct the trustees and others about how the trust should react. For example, which beneficiary or beneficiaries gets what money or other property and when.
But even with the best drafted trusts, they all rely on people to carry out the plan. And clearly, depending on people (or organizations of people) is a risk. Sometimes they need advice, other times instructions, or occasionally must be replaced.
That’s where the role of the trust protector comes into play.
The point of appointing trustee is to have someone or a professional company to act as a proxy when the grantor or settlor is disabled or dies and no longer able to give directions.
The trustee watches over the assets held in trust.
But who watches the watcher?
That’s what a trust protector does. He or she is an appointed professional essentially acting as a guardian of the trust with powers to make sure the trustee carries out the trust directions as the grantor or settlor intended.
There are no standard powers which a trust protector is granted. It all depends on the needs of the grantor.
Commonly, the trust protector is given power to replace the trustee or add trustees; instruct discretionary distributions; approve or require trust distributions; amend the trust to meet changed conditions; or resolve conflicts between the trustee and beneficiaries.
What the trust protector should never be granted is power to access trust assets for the protector’s personal benefit.
Everyone has expectations. Mostly people have common concerns about their own financial security, retirement, protection of their assets, and passing a legacy down to those they love. But everyone is slightly different — some very different.
When those hopes and dreams are written down in an estate plan, use a trust protector to assure that they will be realized.
Denis Kleinfeld is known as a strategic tax and wealth protection lawyer, widely published author and creative teacher.
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