trust state otherwise? To do so would invite obvious problems, as a third party dealing with one protector would not know whether the other protector agreed or already acted to the contrary. And if they must act together but cannot ...
Author: Alexander A. Bove, Jr.
Publisher: Juris Publishing, Inc.
The trust protector is generally regarded as a relatively new position in trust law, and the key feature of the position is that the protector may be granted powers over the trust, which are generally superior to those of the trustee. This places the protector in a position where, by the exercise of his powers, he can cause the trust to adjust to unforeseen changes or new conditions without the need for court action or beneficiary approval. This work takes the firm position that, with only limited exception, the role of the protector is a fiduciary one, imposing on the protector a duty to act in the best interests of the purposes of the trust and the beneficiaries. Unfortunately, a substantial segment of the legal community, as well as the legislative bodies of a number of international jurisdictions, have taken a position that the protector is not a fiduciary, or that he may be declared in the trust not to be a fiduciary, and that the power granted him under the trust may be declared to be personal powers, whether or not such is the case, and thus he would have no liability for his actions or inactions while serving as protector. This “attraction” of providing total exculpation of the protector has effectively engendered a quick acceptance of the position by the bulk of the legal community and even by the legislatures of a number of jurisdictions, though almost totally unsupported by relevant case law. As a result, we have been seeing trusts which incorporate the use of a protector having the power to make critical dispositive and administrative decisions, as well as extensive modifications to the trusts without being exposed to liability for negligence or bad decisions which result in damages. This work will examine in detail the role of the protector of the trust, the relationship between the protector and the trustee, between the protector and the beneficiaries, and the protector’s responsibilities to the purposes of the trust. It will demonstrate with legal support that the role of the protector is not a new role, that, in fact, the protector is simply a new name for the decades-old position of trust “advisor,” and that the trust advisor is consistently regarded as a fiduciary in relevant treatises and has been repeatedly held to be a fiduciary in relevant cases. The discussion will also review and analyze the historical issues and professional commentary relevant to trust law and the role of protector, as well as case decisions in various international jurisdictions which have shed light on the issues and some of the positions taken in the statutes of a number of jurisdictions in the United States and across the world. All legal aspects of the role will be examined, including the rights of the protector, the protector’s relationship to the trustee, and the courts’ regard for and treatment of the position. Further, the work will discuss in detail all of the practical considerations in using a protector, such as selection and special drafting considerations, the use of a protector in a foundation, and, in brief, the numerous tax issues that may apply. The conclusion will be that with only very limited exception, which will be explained, the protector is unquestionably a fiduciary, and just as a trustee, he should be held to fiduciary standards. Accordingly, while it is certainly possible to grant personal powers to an individual under a trust, those powers per se conflict with the duties of a protector. And while it is also possible to reduce the fiduciary liability of a protector to a minimum, it is not possible to eliminate it entirely, regardless of trust language attempting to do so.
Release on 2019-06-12 | by University of Miami Institute on Estate Planning
duties, based in part on how the trust document addresses these questions. In Carberry v. Kaltschmid, 2018 WL 2731898 (Cal. Ct. App.), the trust document expressly provided that the trust protector served “in a fiduciary capacity” and ...
Author: University of Miami Institute on Estate Planning
Each year the most prominent authorities in the field come together at the Heckerling Institute on Estate Planning to discuss and analyze the most important developments in the areas of estate planning and estate, gift, and income taxation. Now in its fifty-third year, the Heckerling Institute is widely regarded as the premier estate planning program in the country. This one-volume publication provides cutting-edge articles based on the podium lectures delivered at the Heckerling Institute. Hot topics for this year's Institute include: • Annual Review of Estate Planning Developments • IRC Section 199A • Powers of Appointment • Charitable Giving
Plenty of trusts are running smoothly, with positive experiences on all sides. This book shows you how to set up your trust to succeed from the start, with step-by-step guidance and expert insight.
Author: Hartley Goldstone
Publisher: John Wiley & Sons
Category: Business & Economics
An insightful and practical guide to family trusts Family Trusts is a step-by-step guide for anyone involved in family trusts: trust creators, trustees, beneficiaries, and advisors. It will help families create and administer a culture that recognizes trusts as a gift of love. Marrying the practical and emotional aspects of family wealth, this book provides a hands-on primer that focuses on fostering positive relationships, and structuring the trust appropriately for the situation and the people involved. It tackles difficult topics with frank and honest discussion, from the first beneficiary meeting to working with addictions, and more. Written by a team of experts in family wealth, this information is becoming increasingly crucial to the successful execution of a trust; you'll learn what type of person makes the best trustee, how to be an excellent beneficiary, and the technical aspects that help you build a better trust from the very beginning. There's been a staggering increase in trustee/beneficiary litigation and hostility, but that doesn't mean it's inevitable. Plenty of trusts are running smoothly, with positive experiences on all sides. This book shows you how to set up your trust to succeed from the start, with step-by-step guidance and expert insight. Express clear and thoughtful intent for the trust Create a healthy and supportive culture Select the right trustee, trust protector, and trust advisor Take the time to prepare before initially meeting the beneficiary Conduct a productive first meeting to set a tone for the relationship Historically, there has been little consideration given to the culture of trusts, and this oversight may be a key driver of the behavior that's becoming more prevalent. Family Trusts explores the nature of these relationships, and shows you how to build a trust that retains the nature and spirit with which it was intended.
If the instrument does not fill the vacancy, the local trust statutes would be examined. ... Trust. Protectors. The settlor may also appoint a trust protector, a person whom the settlor directs to watch over the trustee with respect to ...
Author: Gerry W. Beyer
Publisher: Wolters Kluwer
Using an effective “learn by doing” approach, Wills, Trusts, and Estates for Legal Assistants emphasizes examples and applications, and includes hundreds of real life situations with detailed explanations. Students understand what the rules of law mean and how they apply in a real world context. The complete topic coverage introduces wills and trusts, intestate succession, estate administration, nonprobate transfers, and other estate planning issues such as taxes and malpractice. A balanced, experienced author team skillfully blends theory with practice and extensive pedagogy reinforces the text, with marginal terms and a glossary, ethical points, checklists, practice tips, and sample forms. The instructor's manual provides a summary of chapters, a model course outline, exam questions, assignment ideas, exercises, and a research guide for wills, trusts, and estates. New to the Sixth Edition: The impact of the Tax Cuts and Jobs Act on federal income, gift, estate, and generation-skipping transfer taxes Rights and liabilities of same-sex spouses Electronic wills and access to a decedent’s digital assets Techniques for demonstrating testamentary capacity Directed trusts and trusts authorizing trustees to consider environmental, social, and governance factors in making investment decisions Modifying the terms of an irrevocable trust by “decanting” Professors and students will benefit from: lively, lucid, and conversational style grabs and holds students’ interest learning-by-doing approach gives students a concrete grasp of abstract concepts Practice Tips guide students through the critical process of preparing and managing files flexible structure allows professors to follow the presentation of concepts in the book or organize the chapters to fit their syllabus
protector, even a protector holding fiduciary powers (and a fortiori a protector who holds personal powers), can sue to restore the trust fund, assuming of course that the protector is not a beneficiary of the trust in question.
Author: Paul S Davies
Publisher: Bloomsbury Publishing
This collection of essays, written by leading commentators from across the common law world, examines a range of topics concerning Equity and Trusts in the commercial context. The essays investigate the way in which doctrines derived from the equitable jurisdiction interact with and shape various areas of the law, including company law, commercial law and agency law. Subjects considered include the difficulties in identifying trust assets in the commercial context; the court's role in supervising the trust; and the remedies available in cases of fiduciary or trustee wrongdoing. This book will be of interest to both academics and practitioners working in these difficult areas of equity and commercial law.
TRUST PROTECTOR ARRANGEMENTS A trust protector is a person or entity identified in a trust document who has certain delineated ... Recently , the powers of trust protectors in FAPTs tend to be limited to negative powers — for example ...
Trust Protectors Every so often, but not that often, we find trusts that name a friend or family member as a “trust protector.” This person may have the power to step in and replace the trustee with someone else, either someone named in ...
Author: Liza Hanks
Category: Business & Economics
Millions of Americans have created living trusts over the past couple of decades, giving little or no thought to what the successor trustee will have to do when the time comes. This book shows every trustee how to handle paperwork, keep beneficiaries informed, and get help from experts if necessary.
Subject to the terms of the trust, in the exercise of his or her office a protector shall owe a fiduciary duty to the beneficiaries of the trust or to the purpose for which the trust is created. Where there is more than one protector of ...
Author: Nicolas Malumian
Publisher: Oxford University Press
The growing interest in investment in Latin America - particularly in commodities production and real estate development - has increased the use of trusts as investment vehicles throughout Latin America. Written for the English-speaking practitioner, the book covers Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, México, Panamá, Paraguay, Perú, Uruguay and Venezuela and provides a practical, clear, and thorough explanation of trusts as legal vehicles for investment in Latin American countries. Trusts in Latin America provides a comprehensive, comparative review of statutes, case law, and examples of trusts in Latin America, and also highlights differences between these countries and common-law systems.
26.15 Protectors are not limited to a consensual or consultative role as the trust instrument can provide for protectors to have dispositive functions. Whether such protectors are acting in a fiduciary capacity will be decided by ...
Author: Sara Collins
Publisher: OUP Oxford
The number of disputes involving trusts has risen significantly in recent years. Many disputes take place in the international environment and cross-border jurisdictional issues may arise. These disputes often involve large sums of money, impacting significantly on family relations. The handling of such disputes requires specialist skills and knowledge, including an understanding of how and why private trusts are established and administered and the problems that can arise; an awareness of the cross-jurisdictional issues that may be relevant; and the ability to identify practical legal solutions to the dispute that are compliant with trust principles. International Trust Disputes provides a comprehensive and thorough treatment of this topic. Acting as a specialist guide for practitioners, it offers a survey of the special considerations that may arise with regard to trust disputes as well as a definitive guide to the issues which may be encountered in the jurisdictions where disputes are most likely to take place.
In practice, protectors are likely to be encountered principally, almost exclusively, in offshore trusts where, in many jurisdictions, specific statutory provision clarifying, modifying or regulating the powers of protectors are to be ...
Author: Jonathan Garton
Publisher: Cambridge University Press
Combines authoritative commentary and unique contextual analysis to explain the general principles of trusts and their practical operation.
However , the trust also provided for a “ Trust Protector , ” who had the power to make certain amendments to any of the nine trusts . One amendment he could make would be to take away the " conduit ” provision , and change the trust to ...
Perhaps you would like a good friend, a professional advisor, or a bank to consider serving in a duciary capacity such as executor, trustee, trust protector, or guardian for a child. You should communicate with third parties in advance ...
Author: L. Paul Hood Jr.
Publisher: Bublish, Inc.
Category: Business & Economics
"If you are a member of a blended family, this is the handbook to enable your estate plan to assure that your financial wealth will lead to your family's future well-being. Read it, follow its wisdom and practices, and smile." —James (Jay) E. Hughes Jr, Author of Complete Family Wealth and Family: The Compact Among Generations
As parents, we spend our lives caring and providing for our children. However, many of us lack the foresight to create a plan that will ensure our children are supported even after we are gone. Parents neglect to handle their estates and affairs during their lifetime and leave their grieving children drowning in paperwork and tough decisions. It is even more demanding and grueling for stepchildren and members of blending families to sort through these estates. As a member of a blended family himself, tax attorney Paul Hood has pooled his personal and professional knowledge to create this comprehensive guide to estate planning for blended families. In Yours, Mine & Ours, Hood offers real-world advice while cover crucial topics such as:
Documents for Planning
Important Payers in Planning
Challenges One will Face
Words of Wisdom
When nearly 70% of estate plans yield unfavorable results for the family, the need for a meticulous estate plan cannot be overstated. Hood’s guide to estate planning will allow individuals to rest assured that their families are provided for thoroughly.
Suppose now that we superimpose on the traditional trust framework a “ trust protector ” -a person selected by the settlor to represent the settlor's interests in making specified trust decisions that the settlor will be unable to make ...
... may request the Court of First Instance of the Netherlands Antilles to order the registration of a trust or amendments ... of the trust but not the sole beneficiary The trustee can also be a protector but a protector for a trust is ...
Publisher: OECD Publishing
This report contains the 2014 “Phase 2: Implementation of the Standards in Practice” Global Forum review of Curaçao.
This new definitive work on trust protectors explains the role and appointment of a protector, their powers and duties including fiduciary capacity, how a protector can be removed from office and the relationship with the trustees.
Author: Andrew Holden
Publisher: Jordans Pub
This definitive new work on trust protectors explains the role of a protector. The book discusses: fiduciary position, appointment, powers, limits and duties, control, rights, retirement and removal, relationship between protector and trustees, and precedents. It cites authorities from various jurisdictions including: the US, Canada, the Bahamas, the British Virgin Islands, the Cayman Islands, the Cook Islands, England and Wales, Guernsey, the Isle of Man, Jersey, Australia, and New Zealand. In addition, precedents are included which will assist with drafting protector clauses in trust documents.
At stake is the liability of a trust protector ” named in a revocable inter vivos supplementalspecial needs trust created ... Quoting the official comment to Uniform Trust Code $ 808 , the court noted that trust protectors have gained ...
4-10-412 ( b ) ( “ trust protector ” may modify or terminate trust to extent instrument authorizes ) ; Restatement ( Third ) of Trusts § 64 ( 2003 ) . As to a power to direct or control the trustee , see supra § 16.7 .
Author: Austin Wakeman Scott
Publisher: Wolters Kluwer Law and Business
Now beginning its Fifth Edition, Scott and Ascher on Trusts, formerly published as Scott on Trusts, is widely regarded as the leading authority on the law of trusts. Scott and Ascher on Trusts offer practical advice on the creation, administration, and termination of all kinds of trusts, as well as incisive analysis of the underlying principles of trust law. The duties of trustees and the rights of beneficiaries, would-be beneficiaries, and third parties are constantly being changed and redefined. This preeminent resource keeps you abreast of the latest developments in trust law, enabling you to resolve trust problems efficiently and effectively with regular updates integrating the latest court decisions and legislative changes. Scott and Ascher on Trusts allows you to examine the full range of your options at every stage, from client counseling to final distribution.
estates , the Trust Protector's , the Grantor's or such Beneficiary's respective creditors or the creditors of the Trust Protector's , the Grantor's or such Beneficiary's respective estates ) . Unless otherwise provided in the terms of ...
THE USE OF TRUST PROTECTORS OR BOARDS OF ADVISORS IN LONG - TERM IRREVOCABLE TRUSTS BY HENRY CHRISTENSEN III BACKGROUND . For many years , long - term irrevocable trusts in offshore , English law jurisdictions have included protectors ...
The trust protector ( or , in some cases , a committee of trust protectors ) is given certain oversight powers over the trustee's administration of the trust . For the most part , the trust protector's powers are constructed in the ...