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Trust Planning

By Ellen S. Berkowitz

Trust planning clearly contemplates the future incapacity and death of the donor. The future incapacity or death of the trustee, however, is not always planned for with equivalent detail and thought. This lack of forethought often results in contests between the remaining competent trustees or between the beneficiaries and the trustees. In the matrimonial context, divorcing spouses should carefully consider who should serve as trustees of trusts established for the benefit of children and/or former spouses. Again, the consequences of what happens when that carefully chosen trustee ceases or fails to serve might not be contemplated. When the beneficiaries and trustees are not friendly, as is often the case in trusts established as part of a divorce agreement, the stakes are even higher. To avoid unnecessary and costly battles, the drafting attorney and the trust's donor should focus on matters, including the definition of incapacity, the procedures involved with declaring a trustee incapacitated, how the trust will be administered once a trustee is declared incapacitated, short term incapacity or unavailability, and the possible tax consequences of a having an incapacitated trustee.

Defining Incapacity

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