Dead Hand Control: How Much is Too Much?

Often, clients want to continue to control their beneficiaries after death, just as they’ve done during lifetime. They want to etch in stone the exact circumstances under which distributions should be made to the beneficiaries.

Sometimes they think the beneficiary will have to go to the tombstone like a confessional or ATM.

The problem is the client doesn’t know what may happen in the intervening years. Here are just a few of the several things of which they would not be aware when drafting their plan:

• How the world may have changed between when the document is drafted and their death,
• How the world will change between the time of their death and when the distributions may be made years later,
• How laws may have changed by the time of their death or the time of distribution, and
• How the beneficiary may have changed by the time of the client’s death or the time of distribution.

Rather than trying to precisely anticipate every possible future scenario, which is a fool’s errand, it’s better to put that in the hands of the trustee. The trustee can be given discretion to withhold distributions based on pre-set factors such as:

• The beneficiary is abusing drugs or alcohol,
• The beneficiary is susceptible to undue influence by someone,
• The beneficiary has pending marital dissolution, or
• The beneficiary has Special Needs.

That’s not to say you shouldn’t set forth your general wishes. But, most of the specifics should be left for the trustee to decide.

For example, a client in San Francisco in 1990 might have decided to provide for a beneficiary’s rent and set forth a specific dollar amount of $1,000 to cover it, expecting that would be ample. It would be much better to give the trustee discretion to pay for the beneficiary’s support, in the trustee’s discretion. Imagine how the average rents have changed over two decades in San Francisco, where the rent of even a studio apartment is now over $2400. If a specific dollar amount were used, even inflation-adjusted, it would not allow the flexibility to respond to the changing world. Giving the trustee discretion achieves the desired result: to pay for the beneficiary’s rent.

The trustee selected by the client is in a much better position to judge when a distribution should be made, for rent in the prior example. The first five letters say exactly what you should do with them: t-r-u-s-t them. Trust that the trustee will make the right decision. If you don’t trust that person, put someone in that role whom you do trust.

The client can only gaze into a crystal ball and wonder what might happen in the world and in the beneficiary’s life. Trustees have the benefit of 20/20 hindsight. They know what has happened since the client drafted their estate plan and died. They know the beneficiary’s circumstances and they know the current state of the world. They are in a far better position to make a decision.

Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com