As estate planning attorneys, we know how important trusts are for probate avoidance, tax minimization, and asset management. But, clients often do not give enough consideration to the identity of the trustee who is to follow in their footsteps.
Successor trustees are critical to managing the assets during periods of the client’s incapacity and at the client’s death. These successor trustees will make decisions regarding how the assets should be invested and whether they should be distributed and to whom. Successor trustees also make decisions regarding trust administration. As we all know, a trustee who is “difficult” can make everyone’s life miserable, including the estate planning attorney who is hired for the trust administration.
Clients often default to naming a family member to serve in that role. Sometimes that may be the best choice. However, that may not always be the best choice. Often, clients do not have family Members with the ability to serve in that role. In some cases, it may be unfair to ask a family member to serve in that role. For example, a family member serving as trustee may have a hard time refusing to distribute assets to other Members of the family who are beneficiaries—even if refusing a distribution is the right thing to do. An institutional trustee does not have to sit across from the brooding beneficiary at the Thanksgiving dinner table!
Sometimes, an independent third party is the right choice for successor trustee. Many years ago, the trust departments of banks were seen as the only choice. Now, there is a trend away from bank trust departments and towards independent trust firms, according to research by Tiburon Strategic Advisors in San Francisco. Banks control 40% of the market of personal trusts. However, independent trust companies and brokerage trust operations now dominate the market for revocable trusts, which represent approximately $4.5 trillion out of $6.8 trillion in personal trust assets.
Your client needs to be sure to name someone who is up to the task of filling his or her shoes as a successor trustee. Does the potential successor trustee have the financial experience to manage the assets in the client’s absence – or the prudence to hire a financial advisor who does? Do they have the fortitude to make difficult decisions regarding distributions to other beneficiaries?
Even if your client has an individual who is up to the task, they may want to consider naming an institutional trustee at the end of the line. Whether your client chooses a bank trust department, an independent trust firm, or a brokerage trust operation, an institutional trustee can provide a backstop for the trust. Your client will know that, if the savvy individuals they hoped would serve are unavailable, the trust will still be managed professionally to meet the client’s goals long after the client is gone.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124