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I am in the rough draft of a trust, before I take it to an attorney. Wondering about discretion.

Minocqua, WI |

Currently I am in the rough draft of a trust, before taking it to an attorney.

Here is my situation. I have received some not so good news regarding my health and my children are still quite young. Should anything happen I want to leave them with something and avoid probate.

Should I give the trustee absolute discretion for the payment of principal and income before my children graduate from high school or should I give the trustee that discretion after they graduate? Does it make sense to give the trustee the discretion only when they graduate?

Attorney Answers 3

  1. I guess I am wondering why you are even bothering with a "rough" draft. No trust attorney (or I should say, I wouldn't) sign off on a trust drafted by a lay-person and in fact it will cost you more than if you simply had the attorney do the trust from scratch since the attorney will want to redo it anyway. (note, attorneys really don't do these from scratch).

    Instead of wasting your time figuring all this out on your own, simply go sit down with a trust attorney, discuss with him your goals and desires, and work together with that attorney to find the BEST option.

  2. I have only had one situation where the client simply gave absolute discretion to the trustee. As lawyers, we are always more comfortable when the answer is a little more black and white. The trustee may also appreciate more guidance as to what your intentions are. Having said that, your intent is what the trust is supposed to reflect. The answer in your case may be completely different than another person's. That is one of the things that keeps our work interesting. Every situation is different. If there was a one-size-fits-all solution, you would not need an attorney at all. You could simply buy the form from the office supply.

    You know your children. You know who you want to be in charge of things. Is it going to help either party to have you provide a strong set of guidelines, or is it going to be better if you just tell the trustee to do what he/she sees fit? The answer can be different, depending on the time period. Maybe you give the trustee complete discretion while the children are minors, but give more detailed direction for once they graduate from high school or college. I have seen it done both ways.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

  3. I've been answering avvo questions in reverse order, starting with the most recent and working back in time. I know see more about what you're dealing with than I did a few minutes ago when I answered your subsequent post.
    I'm sorry to hear about your circumstances. My father just died 6 months ago; and I don't wish that on anyone at any age. So, I really hope that your health situation resolves. Medical science has really come a long way; and continues to do so. Stay positive and do what you have to do.
    Now, for your trust situation, I recommend setting as much of a detailed standard as you can. In a way, you can use the trust agreement as a way of parenting even when you're not there. You can use some carrot and stick guidelines like "X amount of money upon graduation for 3.0 GPA; Y amount for 3.5..." etc. Then you can incentivize them to go to college or for keeping a full time job for certain periods of time, etc. Let your mind wander a little bit on some of these issues. You might surprise yourself with some of the ideas that you come up with.
    Hang in there and fight the good fight. And let me compliment you for being a such a caring parent.

    Dennis Phillips is an attorney and financial planner based in South Florida. He is a member of the Florida bar, he holds the nation-wide Series 65 Investment Advisor license, and holds an insurance license in Florida and Virginia. Disclaimer: The response above is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, would significantly alter the above response.

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