Wednesday, February 16, 2011 NEET Tips
NEET Tips answers questions posed online to the NEET website
What is the role of the Trust Protector when the first spouse dies?
The Trust Protector, also known as a Trust Advisor, can have several roles regarding a trust. Principal roles typically include naming a successor trustee where a vacancy exists and the trust document does not specify who should fill that role, and amending an irrevocable trust (or portion of a joint trust) to bring it up to date with new tax laws, fix scriveners errors, or resolve ambiguities in the trust language, among other powers.
Upon the death of the first spouse, presuming a living trust is involved, then either the deceased spouse’s standalone trust has become irrevocable, or the deceased spouse’s portion of a joint trust has become irrevocable. In both instances, the trust document likely names who the successor trustee should be, and the trust document must be followed. So there is probably little or nothing that needs to be done by the Trust Protector immediately. You need to review the trust document to first ensure that provisions were made for naming a Trust Protector, to spell out what powers the trust protector has, and then determine what issues, if any, have arisen with the irrevocable trust that require the Trust Protector’s involvement.
In Vermont, Trust Protectors have fiduciary obligations, so the Trust Protector is advised to consult an estate planning attorney before taking any action, particularly where the action might benefit some beneficiaries over others. |