Best Practices Suggestions for More Effective Trust Drafting: Try to See It My Way

Jay Everett Harker’s father used to say that if engineers had to repair the devices they designed, they would design them differently. Estate planning can feel similar. Lawyers build detailed plans based on law, taxes, and a client’s wishes, while trustees are responsible for carrying those plans out in real life. When the language in a trust is unclear, it can create confusion, disagreements among family members, and even litigation.

One common issue is a failed gift. Clients often leave a specific asset to a beneficiary, such as certain stock or a piece of property. If that asset is gone when the trust is distributed, the gift may fail. Different states approach this situation in different ways, and courts often struggle to decide whether a replacement asset counts. A simple solution is to avoid describing gifts by specific accounts or items that may change. Instead, planners can explain what should happen if the asset was sold, moved, or no longer exists.

Another problem arises when different parts of a trust contradict each other. One section may say a beneficiary receives their share at age 35, while another says age 50. These conflicts usually need a court to settle what the trust creator intended. Careful review of the whole document can help prevent these mistakes, especially when custom language is added.

Trusts also run into trouble when they refer to people or institutions without enough detail. A gift to “St. Mary’s University,” for example, may fit several schools. A trustee named with the wrong legal name may not be legally able to serve. These problems often remain hidden until administration begins, causing delays and additional costs. Verifying names and adding identifying information helps avoid this.

Some terms are not wrong but simply too vague. Instructions that end benefits if someone enters a “committed relationship” or that give income only if a student makes “acceptable progress” leave too much room for interpretation. Without clear definitions or examples, trustees risk upsetting one group of beneficiaries or another. Defining important terms can prevent misunderstandings.

Finally, some instructions are difficult to carry out at all. A will might direct that certain personal items go to a family member, but the executor may have no way to know which items qualify. A gift may depend on whether someone performed a task years earlier, with no records available. Conditional gifts work best when the trust clearly explains how to confirm whether the condition has been met and what evidence the trustee should rely on.

Clear, careful drafting reduces confusion, lowers the risk of disputes, and makes it easier for trustees to carry out a client’s true intentions.

For more information see Jay Everett Harker “Best Practices Suggestions for More Effective Trust Drafting: Try to See It My Way,” ABA Probate and Property Journal, November 3, 2025.