The Trust Protector are new provisions that are designed to keep your Living Trust out of court proceedings such as Trustee/Beneficiary contests. More specifically, a Trust Protector may have the following authority.
- Amend the Trust to comport with current law and proper administration if the Trustor, theTrust creator, is incapacitated or deceased;
- To cure any scrivener’s errors or include provisions erroneously excluded;
- Mediate issues between beneficiaries and the Trustee;
- Remove or appoint successor Trustees.
The Trust Protector (hereafter T.P.) is not active in the managing of the Trust. He/she would be similar to a referee of a game who is on the sidelines. The T.P. is not involved unless he/she is notified by a beneficiary or Trustee that there is an issue to be resolved and only then do they become involved. This will allow action to be taken and avoid costly Court proceedings and attorney fees. The T.P. is usually a professional who is familiar with Trust law and independent from the family. A T.P. may be the family’s CPA, financial planner, or other professional. The Stephens Law Group Attorneys may act as the T.P. and I have acted in that capacity on several occasions. For example, for mediation purposes, a beneficiary may submit a written claim that the Trustee is not following the dictates of a Trust. The Trustee will then be given the opportunity to respond and explain his/her position. The mediation meeting is then arranged by Zoom, telephone or in person in our office. Additional evidence or documentation is provided at that time and a decision is entered by the T.P. This procedure is quick and cost effective as opposed to waiting on a Court and significant attorney fees for each participant. Court proceedings between Trustees and beneficiaries or among beneficiaries can easily amount to hundreds of thousands of dollars and last years. Another example, if Trust law changes, the Trust Protector would contact the Trustee and advise an amendment to the Trust. The Trust Protector would either draft the amendment or have an attorney draft it. This action keeps the Trust current if the Trust creator is incapacitated or the Trust remains open for various reasons after the Trustor’s death.
Based on the foregoing, I highly recommend that you implement the T.P. provisions into your Living Trust. Please contact our office for a further consultation in this regard.
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Blessings,
Jack E. Stephens, J.D., LL.M