In Florida, a trust protector is an individual or financial institution named in the trust agreement that facilitates the administration of a trust. Having a trust protector is not required—it is an optional feature of a revocable or irrevocable trust. A protector can increase the asset protection benefits of trust planning and provide planning and administrative flexibility.
Difference Between a Trustee and a Trust Protector
While every trust must have at least one trustee, no trust requires a trust protector. The trustee performs several necessary functions in a trust agreement. Most importantly, the trustee holds legal title to all trust assets. The trustee administers ongoing trust activity and pays expenses related to trust property. The trustee also handles trust accounting, monitors trust property, and deals with trust beneficiaries and third parties. Florida statutes provide all trustees with specific powers over trust property. Because a trustee is required, if a trustee is unable or unwilling to serve, then either a named successor trustee must take over or one must be appointed by beneficiaries or a court.
Because a trust protector is optional, the protector has only those rights and powers specified in the written trust agreement. Florida law does not require trust protectors, nor does the law grant protectors any rights and powers.
Some of the most common trust protector powers in Florida include:
- The power to remove and replace trustees. This power lets the protector monitor the performance of trustees and replace a trustee who is not performing their role properly.
- The power to modify some trust terms. The trust protector may correct drafting errors, alter terms of the trust that are not consistent with the trustmaker’s clear intent, or modify the trust to comply with or take advantage of changing estate tax or asset protection laws.
- The power to serve as a special trustee over the trustmaker’s business operations. The trust may name someone as trust protector who has experience and special competence in businesses owned by the trust.
- The power to decide how much income and principal is distributed to trust beneficiaries. In essence, the protector serves as a distribution monitor. This arrangement can provide better asset protection for beneficiaries because the discretion for trust distributions to the beneficiaries is vested in an unrelated third party serving as trust protector.
- The power to mediate or decide any disagreements among individual parties to the trust agreement.
How to Appoint a Trust Protector
Trust protectors are sometimes appointed in irrevocable trusts. A trust protector typically is given powers to direct the trustee, share trustee powers, and make changes to the trust agreement. The concept of trust protector originated in offshore asset protection trusts. Over time, the trust protector more often has been incorporated in domestic irrevocable trusts settled by people concerned about asset protection or tax savings.
Florida has enacted a statute to provide for “trust directors” called the Florida Uniform Directed Trust Act. A trust director by any other name, such as “trust protector,” is governed by the statute. The Act is complicated and must be understood before a trustmaker grants powers to a trust protector.
Having a trust protector is optional. A trust will have a trust protector only if the trustmaker appoints somebody to serve in that capacity.
The appointed protector will not serve unless they accept the appointment under the terms of the trust agreement. Typically, the trust includes a way for a protector to resign if they no longer want to be involved in the trust. A trust agreement may nominate successor trust protectors. Or, the trust agreement can include a procedure for the beneficiaries or some other third party to find a replacement. Failure to fill the trust protector position does not affect the trust status, whereas failure to replace a resigning trustee can be fatal to a trust.
A trust protector is a fiduciary. The protector has a fiduciary duty to conduct his powers in the best interests of trust beneficiaries. Just like a trustee, a trust protector may be held personally liable for breach of duty or bad faith. Trust agreements should provide protectors reasonable compensation and protect the trustee from their good faith mistakes as much as possible in order to find persons willing to serve.
People sophisticated in financial, business, and legal affairs are the most common trust protectors. Trustmakers often seek professionals to serve as protectors of their trust.
Some of the benefits of having a trust protector in Florida include:
- Flexibility. A trust protector can have the power to make administrative or dispositive decisions that may not be specifically addressed in the trust document, providing more flexibility in managing the trust as the needs of beneficiaries change over time.
- Protection of Beneficiaries. A trust protector can have the power to remove and replace trustees, protecting the beneficiaries from the actions of an unfaithful or incompetent trustee.
- Continuity. A trust protector can ensure that the trust continues to operate in accordance with the grantor’s wishes, even if the original trustees are no longer able to serve.
- Modification. A trust protector can have the power to modify the trust to adapt to changes in laws or the beneficiaries’ needs.
- Asset Protection. A trust protector may increase asset protection by having the right to veto distributions or to change the trust situs.
- Tax Planning. A trust protector may have the power to amend the trust in response to changing tax laws, or to add powers that provide more favorable income tax treatment for successor beneficiaries.
- Terminate Trust. A trust protector may have power to terminate a trust when the trust administration becomes uneconomical or the trust no longer serves its original purpose.
Do You Need a Trust Protector?
A trust protector can help a trustmaker ensure that the estate plan design is carried out and that family wealth is protected after assets become subject to an irrevocable trust.
That said, most living trusts do not use trust protectors. While a trust protector is not essential, it is useful for complex family situations or for families concerned with asset protection. More and more customized estate plans are incorporating trust protector provisions in their estate planning documents.
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