Trust Protectors for Living Trusts

Jay Adkisson, Esq. offers a simple explanation of the estate planning concept of a trust protector, which has gained traction in recent decades:

"The idea behind [a Trust] Protector is to have somebody who can watch over the Trustee, and terminate the Trustee for any misconduct....

[In a revocable living trust, y]ou are the Trustee of your own Trust, and the beneficiary of your own Trust. You get to control and use the Trust assets freely while you are alive. So why would a living trust need a Protector?

The problem is, you will eventually die. When you die, your heirs then become the beneficiary of the Trust, and whoever you have appointed as the successor Trustee in your trust document will become the acting Trustee. It is this Trustee that you have to worry about — now that your dead, this new Trustee can start to milk the Trust for fees, etc., as described above, and the beneficiaries have no recourse except to engage in expensive litigation against the Trustee, spending their dollars to fight the Trustee, and your dollars to defend the Trustee. That’s a lose-lose as far as your intention in creating the Trust is concerned. By contrast, with a Protector, the misbehaving Trustee can be fired.

But let’s assume that instead of appointed some third-person as the Trustee, you simply make one of your heirs/beneficiaries the Trustee. The problem here is that you can’t predict the future. Maybe by the time you die the new Trustee has developed a drug problem, or maybe the Trustee harbored a grudge against one of the other heirs/beneficiaries and now wants them to get nothing (even though you wanted them to get their share). Without a Protector, the situation is bad. But with a Protector, the new Trustee can be fired.

Forbes, August 25, 2012