While hiring a professional trustee may not always be the best solution, it is almost always better to have a professional with experience managing special needs trusts serve in place of an unqualified or overwhelmed non-professional trustee.
So, you’ve created a trust to protect your loved ones. Did you name the right person as trustee? Likewise, perhaps you’ve just been asked to serve as trustee without a firm appreciation for what that means, or perhaps you’ve just figured it out. Question: Should the trust have a professional trustee?
Whether you’re parent who’s set up a trust or you’re a named trustee, Special Needs Answers recently offered a couple of tests to determine if the trust has the right trustee and if a professional may be in order. Their advice, as you would imagine, is especially poignant in the case of a special needs trust, but also has broader application.
Does the trustee have enough time? Being a trustee is not like being a god-parent; it’s almost like another job and even a full-time job for some kinds of trusts. Is the trustee able to keep up with it?
Does the trustee keep track of the rules? Every trust has various rules in place to maintain it, and even more to make sure it accomplishes its goals. In the case of a special needs trust this means keeping track of government benefit rules (even as they change, or threaten to change as in the current political climate). The trustee has to be able to do this.
Does the beneficiary make things complicated for the trustee? If the trustee knows the beneficiary directly, whether by familial relation or long acquaintance, then they also may exert more influence on the trustee than the trustee ought to allow. If the beneficiary feels entitled or wants to ask for something, they may have leverage and the trustee may cave.
Of course, these questions illustrate the common difficulties a trust and a trustee will have to face. Everyone involved ought to understand these difficulties in advance and make the right choices for all concerned.
Bottom line: If you’re setting up a trust, seek the advice of qualified estate planning legal counsel.
Reference: Special Needs Answers (November 2, 2011) “Is It Time For A Professional Trustee?”
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