Drafting Tips from a Fiduciary’s Perspective
The introduction is below:
The following materials come from the author’s observations since leaving private practice to join the fiduciary side of the trusts and estates profession. The issues addressed are all matters that the author has encountered, both good and not so good.
Most of the suggestions in this outline assume that the trust in question is designed to last a very long time, either to the end of the Rule Against Perpetuities period or longer, thus increasing the likelihood that during the term of the trust, circumstances, including both beneficiary personal circumstances and governing law, will change, and in ways not foreseen at the time a trust instrument was written. Moreover, the assumption here is that it is desirable to provide flexibility without necessity of court involvement, thus avoiding potentially significant delay, expense, and public disclosure of facts that are usually better left within the family. While one occasionally still encounters situations where heavy oversight by a court is necessary or desirable, the trend in this country is clearly away from such oversight, with a view toward allowing all parties interested in a trust to address their issues by agreement, rather than by court order.
Many of the sample provisions in these materials bestow very broad discretion upon trustees, so, as discussed in more detail below, it is of critical importance that trustees be given adequate guidance as to how the settlor intends for such powers to be exercised.