When I began practicing law, clients created irrevocable trusts with caution because the trust was then set in stone. By the time I left private practice, clients created irrevocable trusts with more frequency and considerably less caution because changing irrevocable trusts became commonplace. Trusts and Estate practitioners have several mechanisms that allow them to change an irrevocable trust. The first part of this three-part series explored changes to irrevocable trusts using judicial or nonjudicial modification Are Irrevocable Trusts Really Irrevocable – Part I. The second part examined decanting Are Irrevocable Trusts Really Irrevocable – Part II, and this final part in the series reviews the use of a Trust Protector to modify an otherwise irrevocable trust.
While judicial and nonjudicial modification and decanting derive from state law, Trust Protector provisions originate from the trust instrument itself and by extension, from the grantor. The grantor decides which powers to give a Trust Protector. For example, the Trust Protector may possess the power to remove and replace a Trustee or appoint additional Trustees; to direct, consent, or veto investment decisions; to modify the trust in response to changes in tax or state law; to change governing law or situs; to appoint assets to a class of people or charity in a non-fiduciary capacity; to alter beneficial interests in the trust; to modify the trust in response to changes in trust assets; or to turn off grantor trust status. Think about the Trust Protector as someone who fixes a specific issue only and has no input regarding daily trust administration. The Trust Protector has considerable flexibility and provides the Grantor with a means to address and resolve conflict before it occurs. The Trust Protector may also prevent a court proceeding by exercising any of the powers granted to him or her in the trust agreement.
Sometimes documents refer to Trust Protectors as a trust advisor, distribution advisor, or Special Trustee. The powers given, rather than the name used, determine the party’s role as Trust Protector or something else. Trust Protectors have a limited but vital role and maintain the power to adjust the trust in the future, long after the creation of the trust and perhaps, after many generations when the trust needs a quick fix. While the Trust Protector sounds like a panacea for all Trust issues, it’s important to engage an experienced Estate Planning attorney to help avoid unintended consequences and to ensure that the Trust Protector exercises the powers granted appropriately.
The underinformed may think of the Trust Protector as a Trustee, but that’s not the case. Remember that the Trust Protector may not have the same fiduciary duties as the Trustee. State law determines whether Trust Protectors have fiduciary duties. Some states, like Missouri, have statutes that impose fiduciary duties upon the Trust Protector but allow the grantor to override that in the trust instrument. Other states, like Alaska, impose the reverse presumption that a Trust Protector has no fiduciary duties and require the grantor to make the Trust Protector a fiduciary in the governing instrument, if desired. Remember to consider the interplay between the Trustee and the Trust Protector, especially if you intend for the Trustee to take direction from the Trust Protector. Remember too, that the Trust Protector may have the power to name a new Trustee which may or may not align with the grantor’s intent. The Trust Protector may have other powers to amend the trust which state law may not limit. For that reason, the grantor needs to consider this position carefully in consultation with a Trusts and Estate practitioner. Note that it’s possible to provide for appointment of a Trust Protector without naming a specific individual to serve in that role.
As this article demonstrates, Trust Protectors offer yet another way to add flexibility to an irrevocable trust. The Trust Protector allows for adaptation to changing needs, different laws, or even things that no one considered when creating the Trust. Trust Protectors avoid court, do not require the cooperation of the trustee or beneficiaries, and offer quick solutions without significant attorney fees. Trust Protectors may accomplish things that judicial or nonjudicial modification or decanting cannot. Trust Protectors have the powers enumerated in the trust and under state law. With some careful consideration of the Trust Protector’s powers, it’s easy to create an irrevocable trust that will evolve with changing needs.
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