People often include a trust agreement in their overall estate plan because a trust can accomplish a wide range of goals, including asset protection, incapacity planning, and protecting the inheritance of a minor child. If you establish a trust, you will be required to appoint a Trustee to oversee the administration of the trust. What about a trust protector though? The Los Angeles attorneys at Schomer Estate & Wealth Advisors explain the role of a trust protector and help you decide if you need one for your trust.
Trust Basics
A trust is a legal arrangement that lets you designate a Trustee who will protect and invest assets that are intended to benefit a third party. For example, you might create a trust that holds the inheritance of a minor child until that child is old enough to inherit the assets directly. In the meantime, the Trustee is responsible for protecting the trust assets, investing those assets, and administering the trust according to the trust terms.
What Is a Trustee?
Before discussing the need for a trust protector, it is important to distinguish between a Trustee and a trust protector. You are required to appoint a Trustee when you create a trust, regardless of the type of trust involved or the purpose of the trust. A Trustee must be appointed for the trust to be administrated. The Trustee’s list of duties and responsibilities is long and includes things such as communicating with trust beneficiaries, carefully investing trust assets, distributing trust assets, and paying taxes owed by the trust each year. The law is very clear when it comes to the need for a Trustee and the fiduciary role of a Trustee during the administration of a trust. Things become a little more confusing and less clear when it comes to the role of a trust protector.
What Is a Trust Protector?
A trust protector is usually an attorney who carries out administrative and strategic duties that are not specifically reserved to the Trustee, Settlor, or beneficiaries. The duties and responsibilities of a trust protector are not codified by law in California (nor in most other states), making the role somewhat difficult to define. In fact, despite being named a trust “protector,” there is no legal mandate that a trust protector actually protect the trust. With that being said, most people appoint a trust protector for just that reason. Because the law does not define the specific duties and responsibilities of a trust protector, they are defined within the trust agreement, meaning they can vary from one trust to another. Sometimes a trust protector is appointed to add an extra layer of protection in case the Trustee fails to properly administer the trust. In other cases, a trust protector serves more as an advisor to the Trustee and may even have the authority to make changes to the trust to ensure that the trust purpose is served.
Do I Need a Trust Protector for My California Trust?
Ultimately, it is up to you whether you add a trust protector to your trust agreement; however, you should discuss the matter with your estate planning attorney before making a decision. Some common reasons to add a trust protector to your trust include:
- Complex or valuable assets. The more complex and valuable your trust assets are, the more likely it is that appointing a trust protector is justified. Remember, the trust protector is entitled to a fee just like the Trustee. For a large trust with complex and valuable assets, that extra fee may be more than justified.
- Inexperienced Trustee. If you are appointing a friend or family member who has never served as a Trustee, you may want to appoint a trust protector as both an advisor and to ensure that the Trustee does not make any serious and costly mistakes.
- Likelihood of disputes. If you foresee the likelihood of a challenge to the trust, or you believe that disputes with the beneficiaries of the trust are likely, appointing a trust protector may be the best way to avoid such disputes and/or settle them before they turn into costly litigation.
Do You Have Additional Questions about a California Trust Protector?
For more information, please join us for an upcoming FREE seminar. If you want to help your Will avoid a Will contest in California, contact the experienced Los Angeles estate planning attorneys at Schomer Estate & Wealth Advisors by calling (310) 337-7696 to schedule an appointment.
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