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TRANSCRIPT
DISCRETIONARY DISTRIBUTIONS Old Rules and New Perspectives
Presented to the
San Antonio Estate Planning Council
April 17, 2012
By Leslie Kiefer Amann Sentinel Trust Company
713‐529‐3729 www.sentineltrust.com
Leslie Kiefer Amann Sentinel Trust Company Senior Vice President/Lead Fiduciary Officer 713.630.9614 [email protected]
Publications/Presentations
♦ Personal Trust Administration from the Corporate Trustee Perspective – A Peek Inside, State Bar 27th Annual Advanced Estate Planning and Probate Course, 2003; Midland Business & Estate Planning Council 2004; Corpus Christi Estate Planning Council 2004; San Antonio Estate Planning Council 2005; Fort Worth Estate Planning Council 2006; Lorman Trust Seminar 2008.
♦ Getting Documents From Financial Institutions ‐ Where to Find the Texas Statutory Requirements
and How to Use Them (With Some Helpful Tips and Forms), University of Houston Law Center Advanced Civil Discovery Seminar – Dallas/Houston 2005.
♦ Documentation and Document Retention for Fiduciaries – Who, What, When, Where and Why
Trustees Still Generate So Much Paper (And What to Do With It), Texas Bankers Asso. Seminar 2008. ♦ Fiduciary Law for Trustees, American Bankers Asso. National Graduate Trust School 2005‐2006. ♦ The Uniform Principal and Income and Uniform Prudent Investor Acts and the Power to Adjust From
the Perspective of a Professional Trustee, Houston Bar Association Wills & Probate Institute Advanced Course 2004; Corpus Christi Estate Planning Council 2005; El Paso Society of CPAs 2005; Houston Estate and Financial Forum 2006; San Antonio Estate Planning Council 2007; Midland Estate Planning Council 2007.
♦ Criteria for Selecting a Fiduciary, Texas Society of CPAs, Advanced Estate Planning Conference 2002;
Lorman Trust Seminar 2008. ♦ Fiduciary Responsibility ‐ Business in Trust, National Trust Closely Held Business Association 2001. ♦ Discretionary Distributions, Texas Bankers Association Graduate Trust School 1999 ‐ 2011; South
Texas College of Law Continuing Legal Education, Wills & Probate Institute 1999; Houston Estate Forum 2011.
♦ Property Law for Fiduciaries, Texas Bankers Association Graduate Trust School 2007‐2011; reprinted in the Journal of the NAEPC 2008.
♦ Personal Trust Administration, Texas Bankers Association Trust School 1999‐2011. ♦ Administration of Court Trusts, Texas Bankers Association Trust School 1999–2010; Lorman Trust
Seminar 2008. ♦ Survey of Legislative Initiatives in Texas Trust and Estate Law for 2009, Texas Bankers Association
Advanced Forum Dallas 2008; Rio Grande Valley Estate Planning Council – McAllen 2009. ♦ Financial Planning for the Professional Practice, University of Texas Health Science Center
Continuing Dental Education Institute 2004. ♦ Print articles: Texas Lawyer, Privacy Notices: Who Gets Them and What Should They Say? August 5,
2002; Texas Lawyer, Knowing When to Say No: The Pitfalls of Fiduciary Service, September 10, 2001; Texas Lawyer, Criminal Lawyers and Cash Transactions ‐ How to Make Sure You’re Complying with the Law, November 2, 1998 (co‐author); Texas Lawyer, Lessons in Obtaining Financial Documents and Bank Records, August 17, 1998; Texas Law Reports – Internet Edition Guidelines for Obtaining Documents From Financial Institutions, August 2002.
Professional Affiliations/ Accomplishments ♦ Adjunct Professor, University of Houston Law Center, 1988‐2000; Adjunct Professor Award,
University of Houston Law Center, 1999. ♦ Member ‐ Texas State Bar and Corporate Counsel and Real Estate, Probate & Trust Law Sections;
Texas State Bar College; Houston Bar Asso. and Probate, Trust & Estate Law Section; Houston Estate Forum; Attorneys in Tax and Probate; Houston Estate & Financial Forum; Houston Business & Estate Planning Council; National Association of Estate Planners and Councils; and Sustaining Life Fellow, Texas Bar Foundation.
♦ Board Service – Chair ‐ Texas Bankers Asso. Wealth Management and Trust Division and Trust School
Advisory Board, Investment and Governmental Relations Committees; University of St. Thomas Development Advisory Board; Houston Estate & Financial Forum Board of Directors; Houston Bar Asso. Probate, Trust & Estate Law Section Executive Council. (Past President ‐ Houston Business & Estate Planning Council; Vice‐Chair University of Houston Law Center Alumni Board 2001‐2011.)
♦ Marquis Publications ‐ Who's Who in American Law – Millennium Edition and 2000–2012 editions;
Who's Who in America 2003‐2012 editions; Who’s Who of American Women 2007‐2009 editions.
Education and Licenses
University of Houston Law Center, JD and admitted to practice law Texas 1987; Texas State University, B.M.Ed. and Texas Teaching Certificate, 1976; NAEPC Accredited Estate Planner since 2007.
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Discretionary Distributions ‐ Old Rules and New Perspectives By Leslie Kiefer Amann
The “discretion” exercised by a trustee includes all aspects of administration but making payments out of the trust – the discretionary distribution – often seems to be the greatest challenge. This paper begins with a review of the basic distribution rules and includes discussion about standard distributions and the use of the adjustment power. Generally the citations will be of Texas law; however, some principles are universally applied and regarding those, the paper will draw on the case law of other states and sources.1 Begin with the Understanding that a Trust is a Relationship (Review) In any relationship, a healthy understanding between the parties as to what each expects of the other is critically important. In a trust, the expectations and parameters of the relationship are defined by three primary sources: 1) The instrument creating the relationship;
2) Statutes that apply to the relationship (Probate Code, Trust Code, or Guardianship Code);
3) The “common law” of fiduciary duty to the extent it has not been superseded by the instrument creating the relationship or a governing statute.
Administrators may rely on this order of priority to make virtually all decisions looking to the terms of the instrument first, then to the statute and finally to common law. The terms of the document control unless to do so would be against public policy; the best expressions of public policy are the declarations of the legislature found in the statutes. In the case of Texas trust law, these declarations of public policy policy are found for the most part in that part of the Texas Property Code known as the Trust Code. On the surface, administering a trust seems easy enough; after all, a trust comes with written instructions. But exercising discretion has become more challenging for all of us. In order to avoid litigation, and to provide the best possible service to our clients, trustees should understand not just what to do but why we do things. And the trustee should never forget that there is a mandate in the Texas Trust Code requiring the trustee to administer a trust according to its terms and in good faith.2
1 Any trustee faced with a significant decision must check the specifc state law that applies to the trust being administered. 2 TEX. PROP. CODE §113.051 General Duty ‐ The trustee shall administer the trust in good faith according to its terms and this
subtitle. In the absence of any contrary terms in the trust instrument or contrary provisions of this subtitle, in administering the trust the trustee shall perform all of the duties imposed on trustees by the common law. A fiduciary acts in good faith when he believes his defense is viable and reasonable in light of existing law. Lee v. Lee, 47 S.W.3d 767, 795 (Tex. App.‐Houston [14th Dist.] 2001, pet denied). Bad faith, in a trustee relationship means the “act knowingly or intentionally adverse to the interest of the trust beneficiaries”. Interfirst Bank Dallas N.A. v. Risser, 739 S.W.2d 882,898 (Tex. App.‐Texarkana 1987, no writ) disapproved on other grounds, Texas Commerce Bank v. Grizzle, 96 S.W.3d 240, 249 (Tex. 2002).
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Over the last century, the National College of Commissioners on Uniform State Laws have promulgated a number of “default” trust statutes. Some of these are familiar such as the Uniform Principal and Income and Prudent Investor Acts. Others are less well known but may be widely adopted in many states, such as Uniform Trust Code, the Uniform Institutional Investors Act, Uniform Power of Attorney Act, Uniform Securities Act and a host of others. And there are other helpful sources of which trustees should be aware despite the fact that they are not binding authority. Those include the Restatements of Trust; various Uniform Codes and their Commentary; and various treatises.3 Among the Uniform statutes, there are a handful that have been adopted in Texas as default and mandatory provisions. Mandatory provisions are sections of the Trust Code that affect administration and cannot be overridden by a trust document; a list of items where the legislature has dictated that it would be against public policy to allow the trust document to supercede the statute. Default provisions are those that prevail when the document is silent or vague on a particular matter. Most of the provisions that impact the administration of Texas trusts are default provisions. While the rule is to look to the instrument first, the prudent trustee should be aware of the mandatory rules where the statute prevails even when the document recites something else.4 3 See for example, William F. Frathcer, Scott on Trusts (4th ed 1988); George Gleason Bogert & George Taylor Bogert, The Law of
Trusts and Trustees (6th ed. 2006). 4 Most of these items are set out in §111.0035. entitled Default & Mandatory Rules; Conflict Between Terms & Statute which is
as follows: (a) Except as provided by the terms of a trust and Subsection (b), this subtitle governs: (1) the duties and powers of a trustee; (2) relations among trustees; and
(3) the rights and interests of a beneficiary. b) The terms of a trust prevail over any provision of this subtitle, except that the terms of a trust may not limit: (1) the requirements imposed under Section 112.031 (no trust for illegal purposes); (2) the applicability of Section 114.007 to an exculpation term of a trust; (3) the periods of limitation for commencing a judicial proceeding regarding a trust; (4) a trustee's duty: (A) with regard to an irrevocable trust, to respond to a demand for accounting made under Section
113.151 if the demand is from a beneficiary who, at the time of the demand: (i) is entitled or permitted to receive distributions from the trust; or (ii) would receive a distribution from the trust if the trust terminated at the time
of the demand; (B) to act in good faith and in accordance with the purposes of the trust;
(5) the power of a court, in the interest of justice, to take action or exercise jurisdiction, including the power to:
(A) modify or terminate a trust or take other action under Section 112.054; (B) remove a trustee under Section 113.082 (reasons justifying removal of a trustee); (C) exercise jurisdiction under Section 115.001 (provides that jurisdiction over trusts falls to the
district courts); (D) require, dispense with, modify, or terminate a trustee's bond; or (E) adjust or deny a trustee's compensation if the trustee commits a breach of trust. (c) The terms of a trust may not limit any common‐law duty to keep a beneficiary of an irrevocable trust who is 25
years or older informed at any time during which the beneficiary: (1) is entitled or permitted to receive distributions from the trust; or (2) would receive a distribution from the trust if the trust were terminated. (Above italicized items are the author’s summaries of the numbered code sections cited in the statute.)
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Defining the Terms (More Review) In any distribution decision, a threshold question will be whether the trustee has discretion to make the decision at all. There are many trusts that contain mandatory distribution provisions. These may involve certain acts of discretion as to timing or calculation of “net income” (discussed later herein) but the decision as to whether to distribute is not the trustee’s to make in a trust with a mandatory distribution standard. Where the standard for distribution in the document gives discretion to the trustee, the first thing the trustee must determine is how much discretion is granted and what kind of standard for exercising that discretion in imposed. Distribution standards fall into three categories: The Support Trust A true support trust directs the trustee to pay only for the health, education and maintenance or support (often abbreviated as HEMS) of the beneficiary.5 In other words, the beneficiary may compel the trustee to make distributions in accordance with a specific distribution standard that is generally referred to as an “ascertainable standard”. A standard is ascertainable if it is specific enough to be objectively applied. Typically, a support standard will include the terms health, education, maintenance and support or something similar and may require that the trustee consider the standard of living that the beneficiary enjoys at a prescribed period of time. The Discretionary Trust A true discretionary trust provides that the trustee shall distribute income and principal only in an amount that the trustee in its sole discretion sees fit to pay.6 In other words, the trustee is authorized to make distributions in its sole discretion, which are not subject to any objective standard. The beneficiary may not compel a distribution; instead, distributions are in the sole discretion of the trustee. This is a "non‐objective standard" because it is not specific enough to be objectively applied. Income that the trustee does not elect to distribute to the beneficiary typically is accumulated and thus the exercise of discretion may result in its being paid to another class of persons (remaindermen). The Hybrid The personal trust that is most common is a hybrid of the two wherein trustee is charged with sole discretion over income and principal as the trustee deems appropriate and requiring that in making that determination, trustee consider what is necessary for the support of the beneficiary. Regrettably, there is little case law providing interpretive assistance. The prudent trustee is charged with reviewing each request to determine if it may fall within the scope of the standard of that instrument and under the circumstances presented.
5 RESTATEMENT [SECOND] OF TRUSTS § 154 (1959). 6 RESTATEMENT [SECOND] OF TRUSTS § 155 (1959).
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Distributions Should be Made Pursuant to Grantor’s Intent The duty of the trustee is to reasonably exercise discretion and act to accomplish the purposes of the trust according to the grantor’s intent ‐ within the mandates of public policy and subject to judicial review.7 Many of the early cases arise from suits brought by the trustee seeking a construction from the court of a will or trust instrument. This is not the usual posture of the cases being handed down today. Today, most cases appearing in the literature are suits brought against the trustee for breach of duty. And in general, whether the action is initiated by the trustee or the beneficiary, courts do not like to be burdened with the trustee’s job.8 Despite the reluctance of courts in general to substitute their discretion for that of a trustee, a trustee faced with a significant or difficult decision regarding a distribution (particularly one that may have impact on more than one class of beneficiary) still may consider seeking a determination of the court. In most institutions it would be a matter for the trust committee to determine if judicial interpretation is required. (The decision to request an official construction is itself an example of one of the many related areas that require the exercise of discretion.) A trustee must be careful not to assume it has discretion to make any particular decision. An important first step is to read the document to determine the intent of the grantor and that the decision is a power of the trustee in that particular instrument.9 Read the instrument carefully even if you are sure that it is unambiguous and that you recall perfectly what it says. Every trust administrator should make a practice of reviewing the relevant portion of the document each time you make a distribution and the whole document at least once a year (a good time is tax time or when you do an annual review). If there is extrinsic evidence in the file that clarifies the grantor’s intent or relevant circumstances, review that as well. (As noted below, such extrinsic material may not be binding upon you but prudence and ignorance of purpose do not co‐exist.) Sometimes the basic information has to be “gathered”. Memos to the file from previous administrators, letters from the grantor or written modifications to the document itself may all be necessary in order to interpret a document. It is often appropriate to review the circumstances and condition surrounding the grantor at the time the instrument was executed and in testamentary trusts,
7 A trustee’s exercise of discretion has long been held to be subject to judicial review. State v. Rubion, 308 S.W.2d 4, 9 (Tex.
1957). (Avoiding a situation that requires judicial review – avoiding litigation ‐ is best.) 8 Coffee v. William Marsh Rice University, 408 S.W.2d 269, 284 (Tex. Civ. App. – Houston 1966, writ ref’d n.r.e.). “This Court
cannot substitute its discretion for that of the Trustees, and can interfere with their exercise of discretionary powers only in case of fraud, misconduct, or clear abuse of discretion.” It is worth noting, however, that in this case, the court did ultimately hold that the trustees were free to disregard a provision of the trust providing that the university was to benefit the “white residents of Houston” and found that because conditions had changed significantly since the creation of the trust, the trustees were free to disregard the particular provision applicable to race in order to accomplish the overall intent of the settlor. This case is a perfect example of a change in public policy that impacted a change in administration.
9 Keisling v. Landrum, 218 S.W.3d 737 (Tex. App. – Fort Worth 2007, pet. denied) citing Corpus Christi Nat’l Bank v. Gerdes, 551
S.W.2d 521, 523 (Tex. Civ. App.‐Corpus Christi 1977, writ ref’d n.r.e.); Eckels v. Davis, 111 S.W.3d 687,694 (Tex. App.‐ Fort Worth 2003, pet. denied); Wright v. Greenberg, 2 S.W.3d 666,671 (Tex. App.‐Houston [14th Dist.] 1999, pet. denied).
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the circumstances existing at the time of the testator’s death.10 You are looking for the express instructions in the document from the settlor or a direct statement of the purpose of the trust. There may be clues to infer the purpose from the structure of the trust. And there may also be an expression of preference between current and future beneficiaries. Some basic rules of construction have evolved to help interpret the discretionary distribution clause (or any part) of a trust agreement.
1. Every document is different. The goal is to determine and effect the wishes of the grantor from the four corners of the document.11 Thus, remember to read the whole instrument carefully.
2. The intent must be drawn from the instrument, not the instrument from the intent.12 So, clear your mind of what you think the document says or want it to say and read what it actually says.
3. You can’t “correct” the work of the testator, the grantor, or counsel. The very purpose of requiring a will to be in writing is to enable the testator to place it beyond the power of others, after he is dead, to change or add to his will or to show that he intended something he did not.13
4. This is not math. You can’t add or subtract to what appears in the instrument. If it is
not ambiguous, a court will admit no other evidence for its interpretation. (However, for administration, it is appropriate to consider outside circumstances.) And, if a document is truly unclear, “extrinsic” evidence may be considered by a court to determine what the testator meant by a particular word or phrase.14
5. There is no reason to be afraid of your dictionary – use it.15
10 First Nat. Bank of Beaumont v. Howard, 229 S.W.2d 781, 783‐785 (Tex. 1950); McReary v. Robinson, 59 S.W. 536, 537 (Tex.
1900). 11 Keisling v. Landrum, 218 S.W.3d 737 (Tex. App. – Fort Worth 2007, pet. denied). 12 Huffman v. Huffman, 339 S.W.2d 885, 888 (Tex. 1960). 13 Huffman, 339 S.W.2d at 889. 14 In Reilly v. Huff,14 335 S.W.2d 275, 279 (Tex. Civ. App. – San Antonio 1960, no writ), the court accepted evidence that the
testator was a person of solid business experience and that the instrument was drafted by his attorney to determine that “descendant” should be read in the legal sense.
15 By way of example, the trust instrument states: “In connection with the management of said trusts…I give unto said Trustee all
powers of Trustees set forth in the statutes and to…make advancements to or for the benefit of said trust estates unto the beneficiaries thereof for such purposes as said Trustee may deem desirable or proper…and charge against the interest of said beneficiary to whom such advances are made….” However, the instrument also stated in another place in the document: “Except as noted elsewhere herein, the trustee shall not borrow nor lend.” Trustee consulted Webster’s Dictionary regarding the meaning of the word “advance” which includes: (1) to bring or move forward; (2) to accelerate the growth or progress of; (3) to raise to a higher rank and (4) to supply or furnish in expectation of repayment. Do not be afraid of the dictionary.
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6. An expression of specific intent controls over an expression of general intent; if two
expressions of specific intent are in conflict, choose the one that least conflicts with the general intent.
7. “May” means maybe – use discretion. “Shall” means mandatory – “just do it”.16
8. Certain legal presumptions may be of use. 17
9. Exculpatory clauses usually mean nothing.18
In most cases, the trustee will not find a "bright line". In Re Will of Flyer, the Court held that "although the decisions in this area of the law place emphasis on the precise verbiage found in the provision creating the trust, close analysis reveals that they take into consideration more than such verbiage alone … we educe [the testator's] design not only from the language employed but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which such provisions were framed."19 If you are working with a court created trust or a document that has been modified or reformed by a court, read the order establishing the trust and the agreement itself as carefully as you would any other trust document – even if you think you know what it says. As an example, for trusts created under Section 142 the statute mandates a “health, education, maintenance and support” distribution standard.20 But it is not unusual for the attorneys involved in the creation of a court trust to depart from the terms of the statute and for a judge to approve a trust containing such a departure. Technically, a departure from the statutory language of Section 142 is an abuse of discretion. Aguilar v. Garcia states that the “clear language of the statute requires that the trustee have sole discretion to determine what is in the best interest of the beneficiary and make distributions for the health,
16 Apologies to Nike. 17 These presumptions apply only if there is no specific contradiction of them found in the document:
a. By leaving a will or trust the testator did not intend for property to revert to his estate or pass in intestacy. b. By leaving a will or trust the testator intended to confer some benefit on the beneficiary. c. Children are favored over grandchildren, descendants are favored over collateral relatives, who are favored
over strangers. d. The testator intended that the estate vest as early as possible. e. All persons in a given class and all classes of beneficiaries are treated equally. f. Every word a testator or grantor uses is important. Nothing is there for no reason. g. The testator intended the law in effect at that time should apply.
18 See the Texas Mandatory Statutes at §111.0035 and as noted above. 19 In Re Will of Flyer, 245 N.E.2d 718 (1969). 20 TEX. PROP. CODE §142.005.
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education, maintenance or support of the beneficiary.21 The Aguilar court said it is mandatory to follow the statutory language. This statute was amended again in 2007 to make it clear that the only acceptable reason for a court to depart from this distribution standard is to qualify the beneficiary for government benefits as in a supplemental needs trust. Nevertheless, there are many court trusts that specifically mandate items such as the purchase of a residence or a fixed amount for support. Mathematical Calculations vs. Fiduciary Decisions As some trusts call for distribution by virtue of a formula, the trustee may not be distributing under a traditional discretionary standard. Charitable Remainder Unitrusts for example, may simply require the trustee to exercise discretion in the choice of investments and apply a formula to determine how much to distribute. It is not uncommon for the amount of such a distribution to be fixed but for the trustee to be required to exercise discretion in the choice of the charity that will receive the distribution. This would still require a careful reading of the instrument and file to determine what charitable purposes the grantor/testator intended to accomplish. In some trusts requiring the mandatory distribution of income, the trustee is required to exercise discretion in the decision whether to use the adjustment power (discussed below) rather than make specific distributions for specific purposes. In each instance, however, determining the intent of the grantor is important. Determine Primary Purpose of the Trust Unlike the court created trusts discussed above, individual personal trusts have no mandated statutory language; accordingly, the variance between trusts is nearly unlimited. One of the first things a trustee should do in interpreting a personal trust is to review it to try to determine its purpose. There are several reasons that people establish discretionary trusts. Trusts are established for tax planning purposes; to facilitate the orderly transfer of wealth in accordance with specific wishes; to protect the assets of someone unable to protect themselves; or to accommodate for parental deficiency and exercise control from the grave. (This last is not a realistic goal but is occasionally a factor in the decision to establish a trust.) When a trust is established for tax purposes, it should be drafted to comply with the Internal Revenue Code’s “ascertainable standard”. If a power to invade the principal of a trust is limited by an ascertainable standard, then it generally is not includeable in the beneficiary’s federal gross estate. Some of the language scrutinized by the courts in cases determining whether a power is appropriately limited for tax purposes is helpful when considering the law of distributions.22 The Treasury Regulations define a general power of appointment by saying what it is not: “A power to consume, invade, or appropriate property for the benefit of the decedent which is
limited by an ascertainable standard relating to the health, education, support or maintenance
21 Aguilar v. Honorable Carolyn Garcia, 880 S.W.2d 279 (Tex. App.‐Houston [14th Dist.] 1994, no writ). 22 The Restatement (Third) Trusts Section 50 contains an extensive discussion of this precedent.
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of the decedent shall not be deemed a general power of appointment.” INTERNAL REVENUE CODE § 20.2041‐1. (Emphasis added.)
Upon that framework, certain Treasury Regulations build a standard that includes: 1. Support in reasonable comfort 2. Maintenance in health and reasonable comfort23 3. Education, including college and professional education 4. Medical, dental, hospital, nursing expenses and expenses of invalidism24 It is important to note that the power to use property for “happiness” is deemed to be outside of the ascertainable standard. Apparently, reasonable comfort is “ascertainable” but happiness is not.25 Tax cases provide some guidance but the better guideposts for the prudent trustee are found in the body of common law dealing with personal trust. In looking at personal trusts, the standard may be a clue to the purpose of the trust. If a beneficiary has a power, as co‐trustee or otherwise, to make a distribution to himself or for his benefit, but that power is limited by an ascertainable standard, then the trust property will probably not be includable in the beneficiary’s gross estate for tax purposes and tax planning may have been the primary purpose of the grantor in establishing the trust. But if the power is too broad to be considered ascertainable (for example, the right to distribute money for “happiness”) then the assets fall back into the taxable estate of the beneficiary and the grantor may simply have wished to provide for the beneficiary. Consider Circumstances such as Standard of Living There is more precedent on standard of living than nearly any other issue facing the trustee. This is probably because so many testamentary trusts incorporate the desire of the testator to provide support to a loved one “in the manner to which she was accustomed at my death”. In trusts where the previous standard of living of the beneficiary is not an issue, the “appropriate” standard may be. A trustee should investigate and document; this might include visiting the beneficiary and following up on distributions for major expenses, vacations, and education. And, it might include research to determine what the grantor’s standard of living was a generation or more ago. Many factors are considered relevant by the courts in various circumstances: type and size of dwellings, type and expense of educational institutions attended, wardrobe, domestic help employed, number and price of
23 In Estate of Vissering v. Commissioner, 990 F.2d 578 (10th Cir. 1993), an estate challenged the tax court’s decision surrounding
the word “comfort”. After much contentious litigation, it was generally established that the term “comfort” does not make the standard unascertainable so long as the beneficiary already leads a lifestyle that is at least “reasonably comfortable”. This, of course, appears to circle back to a previous standard of living.
24 Treas. Reg. §20.2041‐1 (C)(2). 25 That “happiness” is unascertainable may be an appropriate subject matter for a different kind of seminar.
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automobiles, membership in recreational facilities, vacations and everyday activities.26 These should be monitored and recorded by the trustee and considered in making maintenance and support distribution decisions. The trustee must determine the amount sufficient for the “suitable” support and maintenance of the beneficiary.27 Despite the broad interpretation of state courts in considering what is appropriate to distribute under an “accustomed standard of living” trust, the prudent personal trustee should also be aware of the tax ramifications of such a standard. The power to invade corpus to continue an accustomed standard of living has been held to be outside the ascertainable standard even if limited somewhat.28 Consider Other Sources of Support There is also some precedent available to guide the trustee regarding the obligation to consider other sources of income available to the beneficiary when making maintenance and support decisions. Cases arising from situations where the instrument does not address whether the trustee should consider outsider resources of the beneficiary are largely testamentary and vary in outcome. From state to state, the default approach falls into three broad categories:
(1) the testator intended that the trust be an absolute gift of support and the trustee should not look outside the trust to determine the beneficiary’s other means;
(2) the trustee must consider other means but the beneficiary is not required to exhaust them; and
(3) the beneficiary must rely completely on his own resources for support unless they prove inadequate.
Often, the grantor specifies what the trustee should consider regarding outside support. But when it is not specified in the instrument, Texas law follows the moderate path assuming the beneficiary’s other means of support should be considered but the beneficiary is not required to exhaust outside resources. As noted, this is not the prevailing view everywhere.29 But in Texas and a majority of states, the view is that there is no reasonable ground to exclude information regarding other means in
26 In re Golodetz, 118 N.Y.S.2d 707, 712‐713 (N.Y. Sur. Ct. 1952). 27 In re Rockefeller, 260 N.Y.S.2d 111, 114 (N.Y. Sur. Ct. 1965). 28 REV. RUL. 77‐60, 1977‐1 C.B. 282. In a personal trust, the issue is not how the trustee spends the money but how the trustee
could spend the money. The Treasury states that “[a] power to use property to enable the donee to continue an accustomed mode of living, without further limitation, although predictable and measurable on the basis of past expenses, does not come within the ascertainable standard prescribed in §2041 (b) (1) (A) of the Code since the standard of living may include customary travel, entertainment, luxury items, or other expenditure not required for meeting the donee’s needs for health, education or support.”
29 In re Demitz, 208 A.2d 280 (Pa. 1965); see also Jonathan M. Purver, Annotation, Propriety of Considering Beneficiary’s Other
Means Under Trust Provision Authorizing Invasion of Principal for Beneficiary’s Support, 41 A.L.R.3d 255, 266 and cases cited therein.
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considering distributions for support. The most important factor to be considered in these jurisdictions is the ultimate intent of the testator or grantor ‐ generally presumed to be support as necessary. The rationale is that to determine what amount of support is necessary, the trustee must consider the beneficiary’s circumstances and determine need.30 In Howard, the Court held that the requirement that the trustee consider income “from any source” included the family. It held that the trustee must consider all income “enjoyed by the beneficiaries from any and all sources, all income enjoyed by their husbands from whatever source so long as it is available for the support of the beneficiaries and their sons” and income received by the sons.31 In some cases of doubt, courts have suggested the trustee should err on the side of the ‘primary’ beneficiary.32 This, of course, presumes that one class of beneficiary is of “primary” importance. Most trusts don’t have a ‘primary’ beneficiary. In fact, as noted below, in most cases the trustee has the same duty to all classes of beneficiary. This may create a conflict between the needs of the current income beneficiary and those of future income or principal beneficiaries. (As discussed below, this conflict is what led to the creation of the Power to Adjust.) Consider the Duty of Loyalty (If It Is Easy, You Aren’t Doing It Right) The “Trustee’s Power to Adjust” found in §116.005 of the Texas Property Code addresses the tension created by the duty of impartiality and the duty to give due regard to the interests of both income and remainder beneficiaries. In making investment allocation decisions, the statute instructs the trustee to act first according to the instrument and then according to the Act. If that result does not allow the fiduciary to comply effectively with the duty of impartiality, the trustee may “adjust” between principal and income. In order to fully understand the mechanism, it is helpful to understand how that tension arises in the first place. The duty of loyalty may be the most important aspect of the fiduciary relationship; it demands a trustee put aside the most human of instincts – “self interest.” At all times, the trustee must put the interests of the beneficiaries above those of himself or of anyone else. And, as spelled out in unmistakable terms in the Texas statute at §117.007, a trustee must manage the trust solely in the interest of all the beneficiaries. This is frequently the most difficult aspect of a trustee’s administrative duties. Drafters should recognize that this objectivity is slightly easier for a professional trustee than for a member of the family or close friend. But beware of any trustee who claims that this part of the job is easy. To view each situation objectively is harder than it sounds. This is difficult when the trustee is confronted with a duty of “perfect loyalty” to two or more beneficiaries of different interests. The current statute does not distinguish between classes of beneficiary. (Neither did the previous one.) Section 111.004(2) defines a “beneficiary” as a person for whose benefit property is held in trust, regardless of the nature of the interest. “Interest” is separately 30 First Nat. Bank of Beaumont v Howard, 229 S.W.2d 781, 786 (Tex. 1950). 31 Howard, 229 S.W.2d at 786. 32 Munsey v. Laconia Home for the Aged, 164 A.2d 557, 559 (N.H. 1960).
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defined as including “any interest, whether legal or equitable or both, present or future, vested or contingent, defeasible or indefeasible.” Tex. Prop. Code §111.004(6). Later, §116.002(2) specifies that the term “beneficiary” in a trust includes “an income beneficiary and a remainder beneficiary”. Nothing in either section of the statute suggests favoring one class of beneficiary over another. Thus, unless a document specifically directs a trustee to favor one class of beneficiary over another, accommodating competing interests within the bounds of the duty of loyalty is a challenge. However, if the trust instrument does provide an articulated standard for unequal treatment between classes, and the terms of that instrument are followed, the trustee should be comfortable with disparate treatment. Draftors should remember that if the grantor wants to favor one class over another, the document should say so. Some clauses are easy and some settlors provide a clear mandate or a purpose statement.33 In many cases, however, the articulated standard is not sufficiently clear. If the document is silent or unclear, the trustee turns to the standards in the statutes – which as noted above, provide for the administration of the trust with the same regard for the interests of income and remainder beneficiaries. The Texas UPIAs mandate consideration of the total investment strategy stressing results in the short term for the current income beneficiary and long‐term for the future classes of beneficiaries.34 When the Document Says to Distribute All Income There are three things the trustee must look for in making a determination as to when to use the Adjustment Power.35 These three requirements for use are: (a) the trustee invests and manages trust assets as a prudent investor, (b) the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust’s income and (c) the trustee determines that making an adjustment is the only way to be “fair and reasonable to all of the beneficiaries except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries.”36 33 An example of such a clear and unmistakable mandate would be: “trustee shall distribute income and principal as necessary for
the health, support, maintenance and comfort of my spouse without regard for the rights of the remainder beneficiaries, even to the complete dissipation of the trust assets...”
34 Texas Uniform Prudent Investor and Uniform Principal and Income Acts §§116 and 117. Despite the use of the word “uniform”
in the titles of these Texas acts, they depart somewhat from the text propounded by the National Conference of Commissioners on Uniform State Laws.
35 The provision describing those three items is contained in the Principal and Income Act, §116.005 and reads as follows: (a). A Trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and
manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust’s income, and the trustee determines, after applying the rules in Section 116.004 (a), that the trustee is unable to comply with Section 116.004(b). The power to adjust conferred by this subsection includes the power to allocate all or part of a capital gain to trust income.
36 Uniform Principal and Income Act of Texas (Comment – Section 104) (1997).
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In simple terms, §116.005 authorizes the trustee to make adjustments between principal and income that may be necessary if the income component of a portfolio's total return is too small or too large because of investment decisions made by the trustee under the prudent investor rule. When the distribution standard states “distribute all income”, what was previously a matter of discretion only as it related to investment decisions now requires fiduciary discretion in determining the amount of the distribution as well. Some trustees assume that you almost never need to utilize the power. But every trustee has an affirmative duty to administer every trust.37 And, part of that duty is to consider whether the Adjustment Power will apply to a particular trust. Therefore, every irrevocable trust must be reviewed at least once to determine if the power should be used going forward. Many trusts will require annual review. This analysis may be boiled down to three basic questions: Is the Adjustment Power available? Whether the Adjustment Power is available is a two‐part test. First, the trustee must determine if the Principal and Income Act is the governing law of the trust. Second, the trustee must be certain the document does not specifically prohibit use of the adjustment power. Even if the Principal and Income Act applies to the trust, the document may contain specific language prohibiting its application; if so, that specific language will govern the trust.38 Or the trust may have special circumstances which prohibit the use of the adjustment power. For example, even when the Principal and Income Act applies to a trust, the adjustment power will not be available if any of the following is true:
a. Language in the trust instrument prohibits the trustee from investing assets as a prudent investor. For example: “I prohibit the Trustee from ever investing in equities” or “Trustee shall only invest in those instruments backed by the full faith and credit of the United States government” or “trustee may not sell the interest in [insert large concentration of stock here].39
b. The trust describes the amount that shall or may be distributed to a beneficiary by referring
to a specific amount, and does not refer to the income of the trust. For example: “Distribute $1,500 per month to each beneficiary,” or “Distribute 3% of the market value on March 1st of each year.”
c. If a trust’s distribution provision is a single discretionary standard that applies to both
income and principal, the adjustment power does not apply but it is important that the standards be identical. Beneficiaries with access to both principal and income, but under
37 §113.051 TEX. PROP. CODE. 38 §116.004(a) (1). 39 In Texas, this is often XON.
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different circumstances may be eligible for adjustment. Example: “Distribute all income and principal only in the event of an emergency.”
d. A non‐independent co‐trustee is required by the document to participate in the
adjustment power decision. No related party, subordinate party, or beneficiary may participate in the decision. If such a co‐trustee is required to participate, then the adjustment power may not be used.40
e. The trust has charitable and non‐charitable beneficiaries and is taking a charitable set aside
for capital gains.41 Engaging in this analysis, the trustee first determines if the UPIA governs the trust and whether the adjustment power is available. If the governing law does not include the UPIA, or if any of the above listed circumstances exist, then the Trustee’s analysis is complete and the power is not available. All that remains for a trustee to do is to make certain that analysis is documented in the file and coded to the trust accounting system. If the use of the Adjustment Power is truly prohibited by the terms of the irrevocable document ‐ that single review is enough. If the prohibition of use of the power is due to circumstances (such as identity of a co‐trustee or simply that the current income beneficiary does not need or want any income), a trustee should have a mechanism to trigger a new review when circumstances change. This can be as simple as a tickler in the software system or may be done in conjunction with each year’s annual review. If Available, Should an Adjustment Be Made to Income This Year? If the Principal and Income Act is the governing law of a trust, and under the current circumstances of the trust the adjustment power is available, then the trustee is faced with whether to make an adjustment. Even in a case where the adjustment power is available to the Trustee, the circumstances and liquidity needs of the income beneficiary, the circumstances of the remainder beneficiaries, the size of the trust, the current asset allocation, the income being produced now, and other factors will all influence the trustee’s decision as to whether to exercise the power. The application of the prudent investor rule is fundamental to the adjustment power. The trustee cannot exercise the adjustment power unless the prudent investor rule is in use for the trust. For example, if the trustee applies the prudent investor standard and decides that the investment
40 If the non‐independent co‐trustee’s participation in every decision is not required, then the non‐independent co‐trustee can
decline to participate in the decision to exercise the adjustment power and the power to adjust can be applied to the trust. 41 This category of trusts, which have charitable remaindermen, are non‐qualified trusts created prior to the 1969 tax law, which
created qualified Charitable Remainder Trusts. These pre‐1969 split interest trusts have both individual and charitable interests, with the net income being remitted to the income beneficiaries or sometimes shared with a non‐profit organization. These trusts take a charitable set‐aside deduction for capital gains, or a proportion of the capital gains, attributable to the charitable interest. The power of adjustment does not apply to trusts where a charitable set‐aside deduction is being taken.
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objectives of the trust can be met by an asset allocation that produces enough traditional income to provide the income beneficiary with the level of benefit he is entitled to under the trust, then no adjustment will need to be made.42 However, if the trustee applies the prudent investor standard and decides on an investment strategy that results in traditional income that does not provide the income beneficiary with the appropriate benefit, then the trustee may make the adjustment. What Issues Should the Trustee Consider? Making this analysis is a valuable opportunity for the trustee to make a wholesale review of all of the circumstances of the trust. Most corporate trustees have committed these questions to a form to be completed by a trust officer and submitted to a trust committee to aid in the decision. The form used is not important; undertaking a diligent investigation is important. Questions include: • What is the purpose of the trust and the primary intent of the grantor? What is the expected
duration of the trust. • What are the names, ages, and any special circumstances of the beneficiaries? • What are the liquidity needs? Reviewing past expenditures is important, but the trustee should
also consider the foreseeable future – including education, health, age of retirement, and other assets that may be coming to the beneficiaries.
• Does the document allow a trustee to invade principal? Does the document allow accumulation of income?
• How are the assets invested, including non‐financial assets of the trust such as oil & gas, timber, rental property, closely held businesses?
• How will the other provisions of the Principal and Income Act affect the net amount allocated to income from oil & gas, timber, and fees?
• What effect would an adjustment to income have on the tax situation of the trust and the beneficiaries?43
If an Adjustment is Made this Year, How Much Should it Be? After considering the factors discussed above, the trustee must exercise discretion to decide whether to adjust between principal and income. An adjustment amount will likely differ for various trusts administered by a trustee, and must be re‐considered every year. A primary concern for the trustee will be the historical returns on the investments in this trust. After consideration of the actual returns and the appropriate beneficiary enjoyment, if there is a difference between those amounts, an adjustment may be made between principal and income.44 42 Just because you can, doesn’t mean you should. 43 Remember that trust accounting and tax accounting are not the same thing. Funds that the trustee distributes as income may
or may not be treated that way for tax purposes. 44 Above all, remember that Section 116.005 “does not empower a trustee to increase or decrease the degree of beneficial
enjoyment to which a beneficiary is entitled under the terms of the trust; rather, it authorizes the trustee to make adjustments
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Many trustees only review a few years of historical information – but longer is better. For example, consider a hypothetical $2 million trust invested in the asset classes set out below with five year average returns: Asset Type Average
return 5 years
Previous Allocation
Annual Return Income/Gain
Allocated for Total Return
Expected Annual Return
Cash 2% 5% $ 2,000 5% $ 2,000US Bonds/Fixed Income
5% 55% $ 55,000 35% $ 35,000
US Equities Yield
2% div 40% $ 16,000 60% $ 24,000
US Equities Gain
8% gain $ 64,000 $ 96,000
Total Return 100% $137,000 100% $157,000 Traditional income $73,000 $ 61,000 Charts are for illustration and discussion purposes only; they are NOT recommendations of asset allocations, representations of actual past results, or predictions regarding future returns.
In the chart above we see that during this period, by allocating less of the portfolio to traditional fixed income assets, the traditional income (shaded gray on the chart) decreased but the total return is increased. In order to be fair to both classes of beneficiary (and assuming that it represents an appropriate level of beneficial enjoyment), adjustment considerations might be as follows: Prior to UPIA – traditional income is $ 73,000 After UPIA when account is invested for total return – traditional income is $ 61,000 Adjustment in this year should be no more than $ 12,000 Assuming that the trustee elected to include the entire difference as the adjustment amount, this would result in an annual distribution of 3.65% of the $2 million FMV trust. When fees are taken in accordance with the statute, for example a fee of 1% or $20,000 taken 50/50 from income and principal and the adjustment calculation remains at $12,000, the actual amount distributed would be $63,000 and the percentage received by the beneficiary is 3.15%. Those trustees who assured beneficiaries that they could rely on “a flat 4%” should be worried ‐ this may not be sustainable.45
between principal and income that may be necessary if the income component of a portfolios total return is too small or too large because of investment decisions made by the trustee under the prudent investor rule.” [Uniform Act Comment to Section 116.005].
45 For this reason, in those states where the statute supports a “unitrust” type calculation, trustees should recalculate annually to
be sure it is a sustainable percentage and should communicate carefully with beneficiaries. In those situations precluding recalculation, the percentage should be chosen very carefully.
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Varying the five year period used (perhaps something like January 1, 2005 to December 31, 2009, can produce alarming results. Asset Type Average
return 5 years
Previous Allocation
Annual Return Income/Gain
Allocated for Total Return
Expected Annual Return
Cash 2% 5% $ 2,000 5% $ 2,000 US Bonds/Fixed Income
5% 55% $ 55,000 35% $ 35,000
US Equities Yield* (S&P)
2% div 40% $ 16,000 60% $ 24,000
US Equities Gain
‐2% gain $ ‐16,000 $ ‐24,000
Total Return 100% $ 57,000 100% $ 37,000 Traditional Income $ 73,000 $ 61,000 *Dividend yields are bottom‐up values defined as the annualized value of the most recent cash dividend as a percent of month‐end price. Charts are for illustration and discussion purposes only; they are NOT recommendations of asset allocations, representations of actual past results, or predictions regarding future returns.
In the second illustration we see the negative impact of having allocated less of the portfolio to traditional fixed income assets at a time when equities were outperforming ‐ a severe decline in equity performance leads to a loss in the principal revenue of the trust. In order to be fair to both classes of beneficiary (and assuming that it represents an appropriate level of beneficial enjoyment) the trustee may now prefer to utilize only the traditional income calculation. Some trustees might consider an adjustment recategorizing income as principal – essentially distributing the loss to both categories of beneficiary. It will help if a trustee can utilize a longer view – 10, 20 or even 30 years – because long term data provides a greater smoothing effect on the calculations. For this purpose, a “market cycle” is clearly something longer than five years. Assuming the trust opts for the traditional income approach, under the above example the difference between the traditional income prior to a reallocation and after being invested for total return is still $12,000 but since there is no gain, assuming no adjustment, this would result in an annual distribution of 3% of the $2 million FMV trust. When fees are taken in accordance with the statute, for example the same fee of 1% or $20,000 taken 50/50 from income and principal the actual amount distributed would be $51,000 and the percentage received by the beneficiary is 2.55%. As noted above, a trustee who promised beneficiaries a 4% return every year is now in a very difficult situation. Of course, in a real market situation, the actual market value of the trust would certainly vary and likely be reduced from the $2 million starting point. In that event, the unitrust calculation is, of course, applied to the reduced number. For example, if the value of the trust is down 15% resulting in a total market value of $1.7 million and the 3.65% number from our first calculation is applied, the resulting distribution would be $62,050 (which is very close to the traditional income amount).
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It is important to note that there is no single solution. Each set of circumstances must be considered and addressed by a prudent trustee. However, there is a constant formula for avoiding mistakes – that the trustee establish prudent policies, follow those policies scrupulously, obtain thoughtful advice and document the process in every case. In a corporate trust department, the procedure described above is usually accomplished by the completion of various forms to gather information specific to the particular account, calculations (some institutions have devised software to perform these), a recommendation by the trust officer, and review and approval by a trust committee. When Not to Exercise The Act provides several limitations on the power to adjust a trust. They are mainly designed to preserve tax benefits that may have been important to the purpose for creating the trust, to prevent other adverse tax consequences, and to remove the potential for conflict of interest by denying the power to adjust to any beneficiary. The limitations enumerated are:
• An adjustment that reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion;
• An adjustment that changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;
• Adjustment from an amount permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside;
• If possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment;
• If possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the individual if the trustee did not possess the power to make an adjustment;
• If the trustee is a beneficiary of the trust; or
• If the trustee is not a beneficiary, but the adjustment would benefit the trustee directly or indirectly.46
46 Uniform Principal and Income Act, Section 104 (1997); the Texas Act was amended to repeal the section that specifically limited
an adjustment that would diminish the income interest in a trust requiring all income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment. Presumably, this was in response to IRS adoption of the Section 643 regulations.
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Examples in the comments to the Texas and Uniform Acts are intended for consideration and comment.47 The Spendthrift Clause The interaction of a spendthrift clause and the distribution standard frequently raise difficult issues for the trustee. There is little Texas precedent on this issue. Trustees should consider NationsBank of Virginia v. Grandy48, wherein the court held that despite unfettered discretion to invade principal, trustees properly refused to invade corpus to pay a beneficiary’s debts where beneficiary had substantial assets outside the trust sufficient to pay. Contrast that with In re Family Trust of Windus,49 an Iowa case wherein the court held that an invasion of principal to pay credit card debt in excess of $60,000 was permissible under the support standard. Trustee should be familiar with the terms of the statute regarding when a spendthrift trust is created in the relevant state. In Texas, §112.035 clarifies that a settlor is not considered a beneficiary of a trust solely because a trustee who is not the settlor is authorized to pay taxes for the settlor. Trustees should remember the spendthrift protection terminates with the trust.50 Once in the hands of the beneficiary, funds are fair game for creditors. See discussion below regarding an exception to the spendthrift rule for child support.51 This is now a statutory provision in most states including Texas.52 Communicate with the beneficiary. The trustee has a duty to be informed of circumstances affecting the trust; therefore, the trustee ought to be in frequent communication with the beneficiaries about individual circumstances and the
47 Bill is the trustee of a trust that requires the income to be paid to the settlor's sister Kristianne for life, remainder to a charity,
the Gates Foundation. Kristianne is a retired accountant and has no children. Her income from her social security, pension, and savings exceeds the amount required to provide for her accustomed standard of living. The terms of the trust permit Bill to invade principal to provide for Kristianne's health and to support her in her accustomed manner of living, but do not otherwise indicate that Bill should favor Kristianne or the Gates Foundation. Applying the prudent investor rule, Bill determines that the trust assets should be invested entirely in growth stocks that produce very little dividend income. Even though it is not necessary to invade principal to maintain Kristianne’s accustomed standard of living, she is entitled to receive from the trust the degree of beneficial enjoyment normally accorded a person who is the sole income beneficiary of a trust, and Bill may transfer cash from principal to income to provide her with that degree of enjoyment. Uniform Principal and Income Act, (Based on Comment – Section 104 – Example 1) (1997).
48 NationsBank of Virginia v. Grandy, 450 S.E.2d 140 (Va. 1994). 49 In re Family Trust of Windus, 2008 WL 3916438 (Iowa Ct. App. 2008). But see, In re Estate of Morgridge, 2007 WL 1874332
(Cal. Ct. App. 2007), wherein the court held that invasion of principal to pay a $71,000 credit card debt was not within the “support standard”.
50 Faulkner v. Bost, 137 S.W.3d 254, 260‐61 (Tex. App. – Tyler 2004, no pet.). 51 First City Nat’l Bank v Phelan, 718 S.W.2d 402, 406 (Tex. App. – Beaumont 1986, writ ref’d n.r.e.). 52 TEX. FAM. CODE §151.001.
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administration of the trust in general. Administrative decisions regarding the availability and application of the Adjustment Power are key issues and the communication with the beneficiaries should be accurate, complete, timely, and in writing. Many states that have adopted the Uniform Principal and Income Act have also adopted a provision which requires the trustee to give notice to the beneficiaries of a proposed adjustment and then provides for a limited time in which to object. Texas decided not to include such a provision because statute and common law already provide adequate notice protection for the beneficiaries. Despite the fact that there is no separate statutory mandate, trustees should educate beneficiaries about this tool and its application to their trust. Beneficiaries should be given information about the process the trustee used to make these discretionary decisions (and indeed all discretionary decisions) in language that is as non‐technical as possible, given the technical nature of the subject and encourage questions and discussion so that beneficiaries understand the terms and administration of their trust. And trustees should document the process. Documenting discretionary action is important and should include payment of expenses, distributions to beneficiaries, and decisions regarding investments or the use of the adjustment power. “If a dispute between the beneficiary and trustee requires a determination of reasonableness, the proof required will be that which would be required to make the same determination by decree.”53 File documentation may become courtroom evidence.54 What to Pay? At first blush, the issue of what to distribute in a trust seems easy. Health, education, maintenance and support are all words with a common, ordinary meaning; however, circumstances affect their interpretation. The trustee must determine whether the primary purpose of a trust is support now, conservation of assets for the future, or both. The variety of requests seems infinite; there is little guidance in case law because suit is rarely instituted to force or protest distribution of a single item. Some requests can easily be classified in more than one way. Some common items requested are: Health – The term “health” typically includes many distributions that would also be permissible under a support standard alone. In Texas, a recent amendment to §142.005 (b)(2) specifies that a … “trustee may conclusively presume that medicine or treatments approved by a licensed physician are appropriate for the health of the beneficiary”. This section was added because trustees administering court created trusts found the variety of requests for distributions related to “health” to be daunting. Difficult decisions related to “health” may involve alternative treatments such as acupuncture or homeopathic remedies and elective medical procedures such as plastic surgery, laser eye surgery, cosmetic dentistry, non‐diagnostic full body scans, unprescribed lab tests (such as tests for STDs),
53 In re Martin’s Will, 199 N.E. 491, 495 (N.Y. App. Div. 1936). 54 For example, if a beneficiary submits his grade report to demonstrate an aptitude for art and then requests a distribution for a
semester in France, treat that grade report as if it were worth a few months in Europe. It will be if there is future litigation surrounding the decision to distribute.
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tattoo removal, and concierge medicine. Some of the obvious (and more traditional) requests that fall under the category of health include: Health, dental, life, and long‐term care insurance premiums Uninsured doctor, hospital and lab costs Home health care55 Physical therapy Psychiatric treatment/Psychological counseling Mental health and mental retardation services Occupational therapy Medical expenses of beneficiary’s children where duty to support exists Dental and orthodontia expenses Medical supplies, equipment, and batteries Pharmaceuticals Medically prescribed therapeutic items such as whirlpools, horses, pools Hospital beds and specially designed furniture for the handicapped Eye care, eyeglasses and contact lenses Linens and special clothing requirements Handicap transport vans and lift equipment Ramp construction, adaptation of doors and remodeling to accommodate handicaps Installation of safety equipment such as handrails Allergy cleaning Education – Without limiting or expanding provisions in the trust document, education is usually considered to include living expenses, tuition, fees, books, and other costs of higher education and/or technical training.56 As such, education would appear to be easy to define but there are many cases demonstrating ambivalence in the courts.57 Common requests classified by corporate trustees as “education” would include but not be limited to the following:
55 See In re Stonecipher, 849 N.E2d 1191, (Ind. App 2006), wherein the court found that it was not an abuse of the trustee’s
discretion to refuse to invade trust principal for in‐home nursing care for the present beneficiary given the consideration of her income from other sources, the remaindermen beneficiaries, and extensive gifting some of which was made from personal funds.
56 See Restatement (Third) of Trusts §50 cmt d(3) (2003). 57 Although the restatement appears to include all these categories as “education” there are some contrary decisions for review.
See, Southern Bank & Trust Co. v. Brown, 246 S.E. 2d 598, 603 (S.C. 1978) wherein the court found that “education” did not include post‐graduate studies but was limited to education up to and including a bachelor’s degree. See also, Epstein v. Kuvin, 95 A.2d 753 (N.J. Super Ct. App. Div. 1953) which held that the term “college education” did not include medical school and Steeves v. Berit, 832 N.E.2d 1146, 1152 (Mass. App. Ct. 2005) adopting a similar definition of “college” in the context of a divorce case. Finally, in the case of Lanston v. Children’s Hospital, 148 F.2d 689 (D.C.Cir. 1945) the court found that it was within a trustee’s discretion to refuse to fund the further education of a beneficiary who was 42 years old, well educated and had a “large income”.
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Tuition including private school, college, graduate school, trade or vocational training58 Study skills classes and tutoring Speech and/or reading therapy Room and board at school Summer school and summer activities After school programs and extended day care Costs of travel to and from school Sports activities and lessons Computer purchase, maintenance and repair Graduation costs, proms, class rings Music lessons and instrument purchase and repair Books and school supplies Uniforms and school clothes Maintenance and Support ‐ The terms “maintenance” and “support” are now generally considered to be synonymous and may be deemed an expression of purpose as much as a distribution standard.59 In fact, when the distribution standard includes these terms, a trustee’s discretion is no longer considered “unbridled”.60 In general terms, “maintenance and support” refers to living expenses such as: Rent or mortgage payments and utilities Property taxes, insurance, maintenance and repairs (on property held outside the trust)61 Auto purchase, repair, and insurance Childcare services Funeral costs Legal fees (for items such as divorce, adoption, or criminal defense) Estate planning, tax, and accounting advice Tax preparation and payment One time requests for vacations, birthdays, Christmas, emergencies, etc. 58 But note those cases cited in Footnote 56. 59 “Support” has been interpreted very broadly in many sources. The Restatement (Third) Trusts Section 50, Comment d(2) (2003)
provides a non‐exclusive list of examples including “regular mortgage payments, property taxes, suitable health insurance or care, existing programs of life and property insurance, and continuation of accustomed patterns of vacation and of charitable and family giving.” And as noted above, courts have held that the “needs of a married man include not only needs personal to him, but also the needs of his family living with him and entitled to his support.” Robison v. Elston Bank & Trust Co., 48 N.E.2d 181, 189 (Ind. App. 1943).
60 Howard, 229 S.W.2d at 785. 61 Real estate held inside the trust will require that taxes, insurance and maintenance be included as expenses of the trust rather
than discretionary distributions.
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This list was compiled over a relatively short time frame in conjunction with requests made in trusts that almost exclusively contained a plain HEMS standard. It is not meant to be exhaustive. Some of these items may seem frivolous for small trusts which is further support for the rule that individual circumstances must be considered. But under all circumstances, “support” probably means more than the bare necessities.62 Considering others Obligated to Support the Beneficiary The existence of a trust generally does not abrogate the duty of any other person obligated to support the beneficiary.63 There are numerous factors to consider in situations where others may be obligated to support a beneficiary. These are raised most often in court created trusts although they certainly may be an issue in any type of personal trust. Such considerations include: (1) The ability of a parent or parents to support a beneficiary under a disability, educate the beneficiary, meet emergencies or provide necessary training for life; (2) the age, mental and physical condition of the beneficiary and if incapacitated the likely duration of the incapacity; and (3) the likelihood of the beneficiary to have continuing medical needs or be able to obtain insurance and to support himself. All states also have law regarding duty between spouses. Beneficiaries and their family members may find the questions a trustee must ask in order to properly consider these items intrusive; some even refuse to respond. But the trustee is charged with determining whether the parent is satisfying his or her duty to support this child or whether the need for maintenance and support really exists so the information is necessary. Most people would rather answer specific questions or prepare financial statements than provide tax returns and tax returns often do not provide a clear picture of financial resources. Notwithstanding their limited value, some corporate trustees still require beneficiaries to provide them. Importantly, as noted above, a court ordered child support obligation will “trump” even a trust containing a spendthrift clause. Section 154.005 of the Texas Family Code allows the attachment of a parent’s trust assets as follows:
(a) The court may order the trustees of a spendthrift or other trust to make disbursements for the support of a child to the extent the trustees are required to make payments to a beneficiary who is required to make child support payments as provided in this chapter.
(b) If disbursement of the assets of the trust is discretionary, the court may order child support payments from the income of the trust but not from the principal.64
62 Hartford‐Connecticut Trust Co. v. Eaton, 36 F.2d 710 (2d Cir. 1929). 63 This principle may be applied to the beneficiary himself. In a situation where maintenance and support may deplete the corpus
of the trust, and the grantor has not favored the current beneficiary over the remaindermen, trustee for an able‐bodied but lazy beneficiary may have to encourage that beneficiary to help himself.
64 TEX. FAM. CODE § 154.005, added by Acts 1995, 74th Leg., ch. 20, Section 1 effective April 20, 1995.
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Finally, it is an unfortunate fact of modern society that substance abuse is found at every level of affluence; it is occasionally addressed in trust documents. A standard of living clause may lock the trustee into maintaining a beneficiary in a comfortable style while he spends the trust assets on drugs or alcohol. The problem became so prevalent that the American College of Trust and Estate Counsel (ACTEC) asked its fellows to suggest language to address it in documents. The recommendation included a provision for drug screening of all beneficiaries, whether or not the trustee suspects the use of drugs. This provides some protection for the trustee against claims of abuse of discretion but presents additional problems and expense.65 Who to Pay It is axiomatic that distributions must be made to or for the benefit of the beneficiary. Usually, determining the identity of the beneficiaries is a relatively easy trustee duty. In interpreting a testamentary instrument, a question may arise as to whether the term “issue” refers to all descendants of the person or just children. Drafters continue to use these terms despite the fact that the Texas statute does not adequately define them.66 Some courts have construed the terms “issue” and “descendants” interchangeably.67 Generally, Texas courts hold that the word “issue” includes all descendants unless there is something specific in the instrument to suggest a narrower interpretation.68 Once the appropriate beneficiary has been determined, and if circumstances require, payments may be made for the benefit of rather than directly to the beneficiary. Many trusts contain a facility of payment clause and Texas statute specifically allows payments for the beneficiary instead of to him or her.69 The statutes are also clear for court trusts.70 In all cases, Texas trust law clearly allows for distributions to a parent, guardian or caregiver. 65 The recommendation included assertion by the grantor that by “making distributions to a beneficiary contingent on passing a
drug test,” the Grantor is “promoting the health and well‐being of the beneficiary.” ACTEC suggested that the instrument specify the frequency and timing of such tests and address consent as a requirement. Despite the resources expended on this project at the time, the language was not widely adopted. This author has seen only a few such documents actually funded and is not aware of any courts having been asked to interpret such a clause.
66 Many states do define these terms more specifically. For example in Pennsylvania the statute specifies:
Meaning of “heirs” and “next of kin,” etc.; time of ascertaining class.‐‐A devise or bequest of real or personal estate, whether directly or in trust, to the testator's or another designated person's “heirs” or “next of kin” or “relatives” or “family” or to “the persons thereunto entitled under the intestate laws” or to persons described by words of similar import, shall mean those persons, including the spouse, who would take under the intestate laws if the testator or other designated person were to die intestate at the time when such class is to be ascertained, a resident of the Commonwealth, and owning the estate so devised or bequeathed: Provided, however, That the share of a spouse, other than the spouse of the testator, shall not include the allowance under the intestate laws. The time when such class is to be ascertained shall be the time when the devise or bequest is to take effect in enjoyment. 20 Pa. C.S. s2514:
67 Guilliams v. Koonsman, 279 S.W.2d 579, 583 (Tex. 1955). 68 Atkinson v. Kettler, 372 S.W.2d 704, 711‐12 (Tex. Civ. App. – Dallas 1963), rev’d on other grounds, 383 S.W.2d 557 (Tex. 1964). 69 Tex. Prop. Code § 113.021.
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A trustee should remember to make capacity clear when signing a contract or purchase request. A trustee may be personally liable on a contract if he fails to stipulate to the contrary when signing.71 As noted above, all distributions should be carefully documented. Policy for distributions to parents or caregivers should include faithful documentation of the purpose of each reimbursement (including receipts or copies of cancelled checks). Monthly maintenance and support distributions should be supported by documentation of need and of expenses gathered periodically – at least annually is preferred. This might include parents’ financial information if they retain a duty to support the beneficiary. The determination as to when a parent’s duty to support the child is terminated requires that the trustee look to the Texas Family Code that requires support to age 18 or graduation from high school of a child who is not disabled.72 The parent of a child suffering a disability may be required by law to support that child indefinitely.73
70 The statute establishing the terms for trusts created under Section 867 of the Probate Code provides for distributions for the
benefit of the ward to be made to (1) the guardian, (2) a person who has physical custody of the person for whom the trust was created, (3) another person the person for whom the trust was created is legally obligated to support, or (4) a service provider providing a service to the person for whom the trust was created or any person the person for whom the trust was created legally obligated to support. TEX. PROB. CODE §868(b)(1‐3) Acts 1993, 73rd Leg., ch 957, §1 eff. Sept. 1, 1993; most recently amended 82nd Leg., eff. September 1, 2011.
The statute establishing the terms for trusts created under Section 142 of the Property Code provide that distributions may be
made to (1) the legal or natural guardian of the beneficiary, (2) to the person having custody of the beneficiary, or (3) “directly to or expended for the benefit, support or maintenance of the beneficiary without the intervention of any legal guardian or other legal representative of the beneficiary.” TEX. PROP. CODE §142.005 (c)(2) Acts 1983, 68th Leg., eff. Jan. 1, 1984.
71 Nacol v. McNutt, 797 S.W.2d 153 (Tex. App. – Houston [14
th Dist.] 1990, writ denied).
72 Section 151.001(b), of the Texas Family Code, reads as follows: (b) The duty of a parent to support his or her child exists while the child is an unemancipated minor and continues as
long as the child is fully enrolled in a secondary school in a program leading toward a high school diploma and complies with attendance requirements described by Section 154.002(a) (2).
73 § 154.001 Support of Child.
(a) The court may order either or both parents to support a child in the manner specified by the order: (1) until the child is 18 years of age or until graduation from high school, whichever occurs later; (2) until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other
operation of law;
(3) until the death of the child; or
(4) if the child is disabled as defined in this chapter, for an indefinite period.
Amended by Acts 1995, 74th Leg., ch. 751, Sec. 39, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch.556, Sec. 8, eff. Sept. 1, 1999.
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Accordingly, despite the common misconception among lay persons, it is important to be aware that child support does not necessarily end at age eighteen.74 For incapacitated adults similar documentation of expenses should be accumulated and the prudent trustee may prefer to make distributions directly to providers to avoid casting a guardian of the person or a caregiver in the role of a financial fiduciary. Situations where an extremely low‐income household may be caring for a beneficiary with a substantial sum in trust (as is often the case in a court created trust) may require special procedures. In a supplemental needs trust, distributions directly to the beneficiary are not advisable even if they are not for prohibited items. Refer frequently to the instrument and should questions arise, do careful research or seek the advice of a specialist. Beneficiaries should be treated differently upon reaching age 18. At that time, assuming the beneficiary is not mentally incompetent, distributions should not be made without the beneficiary’s knowledge and statements should be directed to him or her unless the trust specifically addresses this issue. Many parents are shocked to discover that their child must be included at 18 (or 25) years of age and may request that their child not even be told about the trust. This is not acceptable. Disclosure is mandatory except in very narrow circumstances. Having been amended several times, the current version, effective upon the Governor’s signature on June 17, 2007, reads as follows: § 111.0035 (c) The terms of a trust may not limit any common‐law duty to keep a beneficiary of an irrevocable trust who is 25 years of age or older informed at any time during which the beneficiary: (1) is entitled or permitted to receive distributions from the trust; or
74 § 154.002. Child Support Through High School Graduation. (a) The court may render an original support order, or modify an existing order, providing child support past the 18th
birthday of the child to be paid only if the child is: (1) enrolled: (A) under Chapter 25, Education Code, in an accredited secondary school in a program leading toward a high
school diploma; (B) under Section 130.008, Education Code, in courses for joint high school and junior college credit; or (C) on a full‐time basis in a private secondary school in a program leading toward a high school diploma; and (2) complying with: (A) the minimum attendance requirements of Subchapter C, Chapter 25, Education Code; or (B) the minimum attendance requirements imposed by the school in which the child is enrolled, if the child is
enrolled in a private secondary school. (b) The request for a support order through high school graduation may be filed before or after the child's 18th birthday. (c) The order for periodic support may provide that payments continue through the end of the month in which the child
graduates.
Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 506, § 1, eff. Aug. 30, 1999; Acts 2003, 78th Leg., ch. 38, § 1, eff. Sept. 1, 2003.
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(2) would receive a distribution from the trust if terminated.75 In light of the terms of this statute, trustees and parents should plan for full communication to flow at age 18 unless the document mandates that it may be extended to age 25. Thereafter, even if the document purports to allow continued secrecy, the statute is clear that the trustee is required to keep the beneficiary informed. When to pay? Promptly. A trustee may not unreasonably delay the exercise of discretion. While the court will not direct how the trustee exercises its discretion (with respect to selecting charitable entities to receive distributions), it does have the power to order a “recusant or unreasonably dilatory trustee” to make a decision. If the trustee refuses, it may be removed and a successor appointed.76 One advantage of a professional trustee is that decisions can be made consistently and objectively and investment choices can be more diverse. However, when assets are invested in a more diverse portfolio, the trustee must be sure that liquidity does not become an issue. Liquidity should be the trustee’s problem – not the beneficiary’s. With the use of modern technology, trades may now settle in a matter of hours. Many institutions now use mutual funds, so the old restrictions on trading common trust funds are less relevant. Many alternative investments, however, are very illiquid ‐ requiring in some instances, a year or more to opt out. The trustee should take care to maintain sufficient liquid assets in an account to cover the beneficiary’s routine needs, the trustee’s own fees, and the occasional “emergency”. Beneficiaries who need an appropriate distribution are generally not sympathetic to trade date or lock up requirements the trustee has imposed upon them. Since the distribution standard in a personal trust often includes a requirement of necessity, delay is particularly difficult to justify. After all, if the trustee has made a determination that need exists in order to support the distribution in the first place; it is a reasonable assumption that the beneficiary “needs” the money now. The timing of distributions is also affected by other considerations. It is important to remember that income not distributed may usually be reinvested. But principal and income investments should not be co‐mingled in some circumstances. Many settlors intend by the establishment of the trust to preserve the assets as the separate property of their child. Upon the failure of a marriage, the issue becomes whether undistributed income has been “acquired” by the spouse during the marriage. The
75 Section 113.060 (effective 01/01/06 and repealed as of June 17) imposed a standard that a “trustee shall keep the beneficiaries
of the trust reasonably informed.” A question regarding what is reasonable and whether this would apply to an unvested or contingent remainder beneficiary had trustees – individual and professional‐ scurrying for counsel. The new statute, while less harsh in its requirements, still leaves some room for interpretation regarding what amount of disclosure is necessary to keep a beneficiary “informed” and clearly precludes a testator or grantor from mandating non‐disclosure for any beneficiary 25 or older.
76 Boyd v. Frost National Bank, 196 S.W.2d 497 (Tex. 1946).
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determination may be clouded in cases where the instrument provides that undistributed income “shall become principal”. Helpfully, in most cases where the distribution of income is solely within the discretion of the trustee, the courts have held that the beneficiary did not acquire the property and there is no division on divorce.77 Undistributed income earned by a decedent’s estate of which a spouse is a beneficiary was held to have not been acquired by that spouse.78 The court reasoned that there was no constructive receipt of the income, as the beneficiary had no present or past right to require its distribution. The trustee may elect to distribute undistributed income periodically to avoid commingling. Generally, in Texas, if the beneficiary receives discretionary income distributions from the trust during the marriage, those funds will be community property.79 The issue is somewhat easier in the case of a grantor trust. Undistributed income in a self‐settled trust established prior to the marriage, will remain separate property.80 After a marriage, absent any fraud, a spouse may create a trust from separate property, and so long as the income remains undistributed through the marriage and there is no right to compel distribution, the income is not acquired during marriage and remains separate trust property.81 This makes a trust an effective planning tool for the protection of separate property and is another example of why the precise wording of the distribution standard is important. When the trustee makes the decision not to pay a requested distribution, it is important to properly document the file. Document reasons for declining; and thereafter, convey the decision to the appropriate parties quickly.. Some Special Considerations for Individual Trustees and Co‐Trustees There are compelling reasons for a professional to avoid serving as a trustee ‐ particularly if they also represent the trust. As noted, the duty of loyalty requires the trustee to forego any personal interest and any opportunities for gain with respect to property subject to the fiduciary relationship and to act completely in the interest of the beneficiaries.82 This duty of fidelity forbids the trustee from placing himself in a situation where there is or could be a conflict between self‐interest and the duty to the beneficiaries.83 This is the case even if a client receives disclosure and agrees to exculpatory provisions. Generally, an instrument cannot authorize self‐dealing.84 77 Buckler v. Buckler, 424 S.W.2d 514 (Tex. Civ. App. ‐ Fort Worth 1968, writ dism’d). 78 In re Burns, 573 S.W.2d 555, 557‐58 (Tex. Civ. App. ‐ Texarkana 1978, writ dism’d). 79 Ridgell v. Ridgell, 960 S.W.2d 144, 148 (Tex. App. ‐ Corpus Christi 1997, no pet.). 80 Lemke v. Lemke, 929 S.W.2d 662 (Tex. App. ‐ Fort Worth 1996, writ den’d). 81 Lipsey v. Lipsey, 983 S.W.2d 345, 351 (Tex. App. – Fort Worth 1998, no pet.). 82 Interfirst Bank of Dallas v. Risser, 739 S.W.2d 882, 898 (Tex. App. – Texarkana 1987). 83 Risser, 739 S.W2d at 899, citing, Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945).
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Similarly, an individual trustee who, in his discretion were to distribute attorney or accounting fees to himself or his firm that were unreasonable, might be held liable in tort.85 The trustee is entitled to reasonable fees from the funds of the trust.86 Determination of what is reasonable in Texas requires the consideration of a number of factors such as amount and character of the trust property; character of the trustee’s services, degree of difficulty and what is customary in the community.87 Assume that it would be unreasonable for a trustee to engage himself for professional services and charge both trustee and attorney or accounting fees. Even if a professional is merely a co‐trustee, this may raise questions of self‐dealing. Counsel For the Fiduciary If you are a trustee obtaining advice to make a discretionary decision, an issue may arise as to whom the attorney represents and whether he has a duty to the beneficiary. The majority of cases and ethics opinions hold that the trustee who retains counsel to represent the trustee in connection with administrative decisions in a trust or estate is the client. The client is not the trust88 or the beneficiaries.89 It is very important, however, that the beneficiaries are informed that the lawyer has been retained by the trustee and that “the fiduciary is the lawyer’s client; that while the fiduciary and the lawyer will, from time‐to‐time, provide information to the beneficiaries regarding the fiduciary estate, the lawyer does not represent them…”90 In Texas today, the trustee is entitled to assert the attorney‐client privilege.91 However, in other jurisdictions, the privilege has been held not to attach when a trustee seeks legal advice concerning a matter impacting the interests of the beneficiary. Indeed, usually “a fiduciary has a duty of disclosure to the beneficiaries…and cannot subordinate the interests of the beneficiaries, directly affected by the advice sought to his own private interests under the guise of privilege.”92
84 See, § 113.059 Tex Prop. Code 2003; Langford v. Shamburger, 417 S.W.2d 438 (Tex. Civ. App. – Fort Worth 1967, writ ref’d
n.r.e.). 85 Weatherly v. Martin, 754 S.W.2d 790, 794 (Tex. App. – Amarillo 1988, writ denied); King v. Acker, 725 S.W.2d 750, 754 (Tex.
App. – Houston [1st Dist.] 1987, no writ). 86 TEX. PROP. CODE §114.061. 87 Beaty v. Bales, 677 S.W.2d 759, 757 (Tex. App. – San Antonio 1984, writ ref’d n.r.e.). 88 Thompson v. Vinson & Elkins, 859 S.W.2d 617, 623 (Tex. App. – Houston [1st Dist.] 1993, writ denied). 89 Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996). 90 MODEL RULES OF PROFESSIONAL CONDUCT § 1.2, Commentary (adopted Texas January 1, 1990). 91 Huie, 922 S.W.2d at 923. 92 Hoopes v. Carota, 531 N.Y.S.2d 407 (App. Div. 1988), aff’d mem., 543 N.E.2d 73 (1989).
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When making a distribution to counsel, the best practice is to engage counsel free of any conflict of interest, and to document the engagement and payments carefully remembering that the privilege may not apply. Huie v. DeShazo93, is not an absolute guarantee that a trustee’s claim of privilege will be upheld. There are exceptions to Evidence Rule 503 including any claim wherein the trustee has failed to make appropriate disclosures to the beneficiary.94 Be sure trustee and attorney know who the client is. Terminating Distributions A common time for a dispute to arise between the beneficiaries and the trustee is upon termination of the trust. Terminating events may be a specified birthday; the death of a beneficiary or an individual who was a measuring life; the depletion of the trust assets to an uneconomic size; or the completion of the purpose of the trust, such as the graduation from college of the beneficiary of an education trust. A trustee can anticipate some events and ensure files are tidy and documentation is gathered in advance but there are some events that cannot be anticipated. Good documentation habits ensure a trust file is ready for a terminating event at any time. There is Texas statute that impacts the determination that a trust is uneconomic.95 It is obvious that any decision to terminate a trust under the uneconomic provisions of the statute should also preceded by communication with and full disclosure to the beneficiaries. The statute is relatively new (2007) and the author is unaware of any cases deriving from either a refusal to terminate an account that is smaller than the threshold amount set out in the statute or an attempt to terminate an account that is larger for uneconomic reasons. Conclusion The distribution decisions associated with personal trust are more art than science. Experience and judgment matter. And often, as the adage goes, the most valuable experiences arise out of an exercise of bad judgment. In some cases, a mistake can result in a very painful lesson for a trustee. To be a good trustee requires education, skill, attention to detail, the ability to plan carefully and execute meticulously, patience, judgment and a little luck.
93 Huie v. DeShazo, supra. 94 Montgomery v. Kennedy, 669 S.W.2d 309 (Tex. 1984). 95 Sec. 112.059. TERMINATION OF UNECONOMIC TRUST.
(a) After notice to beneficiaries who are distributees or permissible distributees of trust income or principal or who would be distributees or permissible distributees if the interests of the distributees or the trust were to terminate and no powers of appointment were exercised, the trustee of a trust consisting of trust property having a total value of less than $50,000 may terminate the trust if the trustee concludes after considering the purpose of the trust and the nature of the trust assets that the value of the trust property is insufficient to justify the continued cost of administration. (b) On termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust. (c) A trustee may not exercise a power described by Subsection (a) if the trustee's possession of the power would cause the assets of the trust to be included in the trustee's estate for federal estate tax purposes. (d) This section does not apply to an easement for conservation or preservation.