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Proactive Trust Planning to Protect Your Clients
Planning for trusts has evolved substantially over the years. “Modern” trusts are more comprehensive, flexible and protective than those that were more typically completed only a few short years ago. Understanding the characteristics of modern trust drafting is critical to achieving better protection for clients. But this planning can extend well beyond just planning new trusts. Even existing irrevocable trusts that might have been created in a less optimal manner may be improved. And it may be feasible to bring back into a protective trust structure gifts and bequests that were made out of trust. The IRS and the Obama administration have taken a less-than-favorable view of some of the planning techniques. Practitioners need to be aware of these risks so that they can encourage clients to act quickly when advisable.
Are Trust Assets Reachable?
Whether a trust is reachable in a divorce proceeding will depend on a number of trust characteristics. If a trust is deemed a “support” trust, which directs the trustee to make distributions to support the beneficiary, it may be reachable. A common support standard is Health Education Maintenance and Support, referred to by the acronym “HEMS.” Support trusts may have to rely on a spendthrift provision for any protection from claimants. In contrast, a “discretionary” trust gives the trustee the power to determine if, when, and how much to distribute from the trust. A pure support trust might be easier to reach in a matrimonial action. A pure discretionary trust may be more difficult to reach, because the trustee does not have to exercise the discretion given. While these generalities provide useful constructs, reality is much more complex because many trusts are actually a blend of the two principals, and all of this is compounded by the differences in state law.
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