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Home » How Much Discretion Should Your Trustee Have?

How Much Discretion Should Your Trustee Have?

January 16, 2019Trust in Indianapolis

Indianapolis trust administration

Once you outgrow your initial estate plan, you will likely find that you need to incorporate a wide range of estate planning tools and strategies to ensure that your plan will achieve the ever-expanding list of inter-related goals now included in your plan. One of the tools you may choose to utilize is a trust. Trusts have become increasingly popular, due in large part to the flexible nature of a trust. When creating your trust you must focus on how the trust will be administered, starting with your choice of Trustee. You may also wonder how much discretion your Trustee should have. Ultimately, the decisions relating to the trust you create are yours to make; however, an Indianapolis trust administration attorney points out some things to consider when deciding how much discretion your Trustee should have.

How Does a Trust Work?

A trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a Settlor, also called a Maker, Grantor, or Trustor who transfers property to a Trustee chosen by the Settlor. The Trustee holds that property for the trust beneficiaries. The beneficiary of a trust can be an individual, an entity (such as a charity or political organization), or even the family pet. A trust must have at least one beneficiary but may have an unlimited number of beneficiaries.

All trusts can be broadly divided into two categories – testamentary or living (inter vivos) trusts. Testamentary trusts are typically activated by a provision in the Settlor’s Last Will and Testament and, therefore, do not become active during the lifetime of the Settlor. Conversely, a living trust activates during the Settlor’s lifetime. Living trusts can be further sub-divided into revocable and irrevocable living trusts. If the trust is a revocable living trust, as the name implies, the Settlor may modify or terminate the trust at any time. An irrevocable living trust, however, cannot be modified or revoked by the Settlor at any time nor for any reason unless a court grants the right to revoke or modify the trust.

Choosing Your Trustee

One of the most important, and often most difficult, decisions you must make when creating a trust is choosing the Trustee. This is also where people frequently make their biggest mistake by appointing a spouse, family member, or close friend without taking the time to analyze whether that person is really qualified for the job. The overall job of a Trustee entails protecting the trust assets and administering the trust terms; however, within that broad job description are numerous and varied duties and responsibilities, including:

  • Managing and protecting trust assets
  • Abiding by the trust terms unless they are impossible, illegal, or unconscionable
  • Investing the trust funds using the “Prudent Investor Standard”
  • Monitoring trust investments
  • Communicating with trust beneficiaries
  • Resolving conflicts among beneficiaries
  • Making discretionary decisions (if the trust allows)
  • Distributing trust funds to beneficiaries
  • Approving or denying requests for distributions if given discretionary authority
  • Keeping trust records
  • Preparing and paying trust taxes

Trustee Discretion – How to Get It Just Right

The Trustee of any trust will almost always need to make some decisions autonomously given the nature of the Trustee’s job. The issue is how much discretion a Trustee should have, not whether to grant any discretion at all. As the Settlor of the trust, you effectively decide how much discretion to give your Trustee through the trust terms you create. To a large extent the type of trust you create coupled with your trust purpose will dictate how much or how little, discretion your Trustee needs in order to successfully administer the trust. For example, if you are creating a testamentary trust to guard assets for your minor children, the Trustee will likely need a significant amount of discretionary authority to accommodate the unforeseen changes that will occur as your children grow up. On the other hand, if you create an irrevocable living trust for the purpose of protecting assets, your Trustee won’t likely need much discretion given the nature and purpose of the trust.

Contact Indianapolis Trust Administration Attorneys

For more information, please download our FREE estate planning worksheet. If you have questions or concerns related to Trustee discretion, or any other aspect of trust administration, contact the experienced Indianapolis trust administration attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.

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Paul A. Kraft, Estate Planning Attorney
Paul A. Kraft, Estate Planning Attorney
Paul Kraft is Co-Founder and the senior Principal of Frank & Kraft, one of the leading law firms in Indiana in the area of estate planning as well as business and tax planning.

Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
Paul A. Kraft, Estate Planning Attorney
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Trust Administration Steps
To ensure that your estate doesn’t lose assets to federal gift and estate taxes you may need to include tax avoidance strategies in your estate plan. One estate planning tool that can provide tax avoidance benefits is a Grantor Retained Income Trust, or GRIT. Always consult with your estate planning attorney before deciding what tools to incorporate into your estate plan. In the meantime, however, the Indianapolis trust attorneys at Frank & Kraft explain how a Grantor Retained Income Trust works and why you might want to include one in your estate plan. What Is a GRIT? A GRIT is a specialized type of irrevocable trust that allows the Grantor (creator of the trust, also referred to as the “Settlor”) to transfer assets into the trust while retaining the right to receive all of the net income from the trust assets for a fixed term of years, referred to as the “initial term.” Income from the trust is distributed to the Grantor at least annually during the initial term. At the end of the initial term, the remaining principal is either distributed to the trust beneficiaries or remains in the trust for the benefit of those beneficiaries. The primary benefit of a GRIT is that if (this condition is important) the Grantor survives the initial term, the value of the principal held in the GRIT is excluded from the Grantor’s estate for federal gift and estate tax purposes. How Does a GRIT Help with Tax Avoidance? The tax avoidance benefit of a GRIT is found in how the value of the trust principal is determined because those assets are valued at a discount. The value of the discount depends on the length of the initial term of the GRIT, and the applicable federal rate in effect at the time the GRIT is established. The transfer of assets to a GRIT constitutes a gift equal to the total value of the assets transferred to the GRIT, less the present value of the retained income interest held by the Grantor for the initial term. If the Grantor survives the initial term, the assets comprising the GRIT will pass to the designated remainder beneficiaries at a reduced gift tax value. GRIT Beneficiaries Section 2702 of the Internal Revenue Code determines who you cannot name as a beneficiary in a GRIT. Excluded beneficiaries include your spouse, your ancestors or the ancestors of your spouse, any lineal descendant of yours or your spouse, any sibling of yours or your spouse, or the spouses of any of the foregoing persons. You can name lineal descendants of siblings, (nieces and nephews) relatives even more distant than nieces and nephews, or friends of yours or your spouse as beneficiaries of a GRIT. How a GRIT Works in Practice Imagine that you establish a 15-year GRIT and transfer $100,000 of assets into the trust and that the applicable federal rate is five percent. As the Grantor, you will receive the income from the GRIT during the initial term. The present value of the retained income interest is $66,007, making the value of the gift $33,993. If you survive until the end of the initial term, however, the remainder beneficiaries will receive $100,0000 plus all capital growth. Your estate, however, will only need to acknowledge a lifetime gift in the amount of $33,993 (the applicable value of the gift at the time it was made). Disadvantages of Using a GRIT Just like most tax savings tools and strategies, there are some disadvantages to relying on a GRIT. First, it is an irrevocable trust, meaning if your personal circumstances change, you cannot make corresponding changes to the trust. Second, if you do not survive the initial term the advantages gained by creating a GRIT do not apply. Contact the Indianapolis Trust Attorneys For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about establishing a Grantor Retained Income Trust, contact the experienced Indianapolis trust attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
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