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In creating a trust with four heirs , one son will be Trustee , is it necessary to have a third party " Trust Protector ? "

Culver City, CA |

I heard from a friend who has a Revocable Living Trust for his home , an Irrevocable Trust for other assets ( real estate rentals ) , and a Mei - Cal protection trust , that his attorney inserted a provision for a Trust Protector , in case of disputes amongst heirs . The 3rd party Trust Protector has all kinds of powers ( charge fees to review any and all docs but is indemnified from any action or inaction ) . There are 3 heirs and one son is the Administrative Trustee . My friend the Administrative Trustee was told this Trust protector and having a Distribution Trustee other than himself was required otherwise there would be tax implications . In this set up , is it required to have a Trust Protector and have the Armin Trustee different than the Distribution Trustee ?

Attorney Answers 8


  1. There are no requirements to have a protector or separate trustees. This is entirely based on wishes of settlor...

    This is for general information only. Nothing in this information should be construed as creating an attorney-client relationship nor shall any of this information be construed as providing legal advice. Laws change over time and differ from state to state. These answers are based on California Law.Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney about your particular situation. No attorney-client relationship is established.


  2. It is not necessary to have a "Trust Protector" in your circumstances, but likely advisable. You are putting one son in a difficult spot with his siblings should a dispute arise. They likely fought on the couch over a toy several decades ago. Imagine them "lawyering up" over a house, an investment account, etc. Probate litigation is the worst possible thing for sibling relationships after a parent dies. Please consult with a qualified estate planning attorney in California to discuss your options in order to avoid this nightmare.

    This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship.


  3. A "Trust Protector" is a relatively recent concept. It is not necessary. Further, in most cases, it is not even advisable due to the extra cost. Where members of the family get along, where the named trustee keeps the beneficiaries informed, where the trust does not last long past the settlor's (decedent's) death, etc., then the presence of a third party simply adds cost and can create unnecessary friction. The Settlor's desires and intentions -- not those of the third party Protector who is seeking fees -- are paramount to this decision; and should the pros and cons of each should be discussed with her/his attorney. Good luck.

    veRONIca jarnagin, atty, pc provides this response as general guidance and not specific legal advice. If you wish to receive specific legal advice for your situation, please call 317-253-7664 to schedule an appointment.


  4. As stated by my colleagues, you are not required to have a Trust Protector as part of your trust. However, depending on your particular situation and the nature of the relationship between the trust beneficiaries, it may be a prudent move. You should discuss all of this with an estate planning lawyer in your area. If you need a referral, try the local bar association or the Avvo Find a Lawyer tool.

    ** LEGAL DISCLAIMER ** My response above is not legal advice and it does not establish an attoreny-client relationship. When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am licensed in California. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. For specific advice regarding your particular circumstances, you should consult and retain local counsel. Law Offices of Eric J. Gold www.EGoldLaw.com Telephone: 818-279-2737 Email: service@egoldlaw.con


  5. I agree with others that preceded me. Although a trust protector isn't likely necessary, I would also advise that areas of trust administration that give the trustee discretionary powers be closely examined to determine not only how flexible the trust allows the trustee to be, but whether those flexible areas are ones where contention might later develop.

    Your estate planning attorney can help with this.

    The above is not intended to be legal advice, but may be used for general information. Please contact an attorney for specific help tailored to your needs. www.figgardenlaw.com


  6. A Trust Protector' is a great tool to use as a way to settle disputes among heirs.
    It is just one of the many options to consider when discussing with your estate planning attorney.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  7. There is no "protector" requirement. Have you considered successive trustees; co-trustees; an independent third party trustee? Consult with an informed estate practitioner who is armed with the specific backround of your family history.

    Please be advised that this communication is for general public informational use only and does not establish an attorney-client relationship.


  8. Although the statement "a trust protector is not required in a trust is accurate" it is probably not a complete answer. Trust protector provisions will add a little in the complexity of a trust, they can provide tremendous benefit if needed. We draft such provisions in most of the irrevocable trusts we draft, but have actually only had to use them a couple of times. But when you do need them they can add tremendice flexibility to an "irrevocable trust" in ways that would otherwise likely cause trust assets to be included in an estate and subject to estate or gift taxes. (40%) But estate inclusion is only an issue for estates greater than $5,250,000 in 2013. But the flexibility and the ability to clear ambiguities, make changes in the trust if circumstances arise that were not foreseen but would change the grantor's intent.

    Attorneys that do a lot of advanced planning generally understand the benefits of trust protectors and use them regularly. If your attorney is suggesting them, he is probably such an attorney as attorneys that don't understand the benefits don't recommend them.
    It sounds to me like you are in good hands.

    Every situation is different, it is important to discuss your legal issue with a knowledgeable attorney in your jurisdiction. To schedule an appointment with me please contact me at 800 220-4205 or www.MartyBurbankLaw.com

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