Trustees and Beneficiaries: More Good News than Bad?

I really like the idea behind “The Positive Story Project,” a new monthly column at Wealthmanagement.com. Here’ the first three paragraph from the opening salvo:

My goal in writing this column is to focus thinking within our community of practitioners—important players in the transfer of wealth to younger generations.   And, with so much at stake for our clients and their families—a good deal more than preservation of financial assets—let’s make this column a conversation.

Can the widespread dissatisfaction and all the talk of “problem” beneficiaries and “problem” trustees, give way to more creative and productive relationships?  I say:  “Absolutely.”  And, if your intuition is the same as mine, the harder question becomes “how do we get from here to there?”

To begin to find out, my colleague, Kathy Wiseman, and I have been going to the source—beneficiaries, trustees and their advisors—asking them for positive stories about moments in time when their relationships have worked well.  I’ll discuss what can be learned from these individuals and their stories in this column each month.

I look forward to more on this subject, both to help me as a practitioner and to inspire my clients and potential clients to use trusts to better carry out their wishes.

Trusts: Size Matters

The trusts I draft are almost always quite long–in excess of 40 pages. I sometimes wonder if they’re too long. And then I encounter a problem caused by a short, poorly drafted trust and wonder no more.

Folks, you probably won’t discover what’s wrong with your trust or your parents’ trust until one of the grantors dies or becomes incapacitated, but by then it will probably be too late to do anything. That’s why you and your attorney must be very careful in the beginning to think through your plan and make sure your estate planning documents are in good order. You should make sure they cover the many contingencies that could result in a weeping and wailing and gnashing of teeth if (when?) disgruntled beneficiaries decide to challenge the trustee.

Don’t think that will happen in your family? Then you haven’t seen what money or the lack thereof can do to people, people known as beneficiaries. I’m watching this happen right now. Three siblings arguing that a fourth sibling/trustee is up to no good. Most of their argument is based on what they perceive as a badly drafted 7- or 8- page trust.

Now without agreeing with them–in fact, I disagree with them–I can say unequivocally that a good 40+ page trust would easily withstand their assault. Why? Because those 40+ pages aren’t just boiler plate, thrown in to make the trust look official. No, those pages are chock full of provisions that deal with death, divorce, incapacity, disgruntled beneficiaries, and  the like. They give powers to the trustee to do what the grantor would do if he or she were still alive when the unforeseen need arises. In short, those extra pages ensure that the trust will do what it’s supposed to do well after the grantor has ridden off into the sunset.

So no, I don’t worry any more that my trusts are too long. They’re not. They cover all the bases, and that’s just right.

Happy Birthday to It

It doesn’t look a day over . . . : The estate tax turns 100.

Estate Planning? I Don’t Have Time . . .

Why doves cry. Half of Prince’s estate to go to government.

What I’ve Been Reading Today

Some good advice about Social Security. 

About that Power of Attorney

A power of attorney gives someone else–the agent–the power to act in place of the person granting the power–the principal. A durable power of attorney is a power that continues even after the principal becomes incapacitated, hence the adjective “durable.”

If you or your attorney is drafting a power of attorney in Utah or any other Uniform Power of Attorney Act state, be careful and be very specific; make sure certain grants of power are “expressly” authorized in the document that allows the agent to act in the principal’s behalf.

To wit, Utah Code §75-5-503, signed into law in 2003, says:

A power of attorney may not be construed to grant authority to an attorney-in-fact or agent to perform any of the following, unless expressly authorized in the power of attorney:

(1)  create, modify, or revoke an inter vivos revocable trust created by the principal;

(2)  fund, with the principal’s property, a trust not created by the principal or by a person authorized to create a trust on behalf of the principal;

(3)  make or revoke a gift of the principal’s property, in trust or otherwise; or

(4)  designate or change the designation of beneficiaries to receive any property, benefit, or contract right on the principal’s death. (emphasis supplied)

General, broad language probably won’t do. The grant in these four cases must be express because these four cases present too great an opportunity for abuse. I’ve hedged just a little here because the one Utah Supreme Court case on this point seems to leave the door open, if only slightly, to less express language, language typical of a broad grant of power.

In fact, in analyzing the language of the durable power of attorney at issue in the Burrows case, the Utah Supreme Court talked favorably about both the broad and the express grants of power:

¶ 17 The durable power of attorney expressly granted Ray authority to gift Ida’s personal property. The two-page instrument gives Ray broad authority over Ida’s assets and personal property. It authorizes Ray “ in any and every way and manner [to] deal in and with goods, wares, and merchandise, [choses] in action, and other property in possession or in action, and to make, do, and transact all and every kind of business of what nature or kind soever.”

¶ 18 More specifically, the power of attorney expressly authorizes Ray “ to gift property whether real or personal.” . . .  131 P.3rd 9 (Utah 2008)

If I were arguing this proposition before another court, I would argue like a mother bear that even the broad language does the job according to Burrows. If I were drafting the power, I would make sure the power of attorney expressly authorized each of the four powers outlined in §75-5-503, that is, if my client wanted to give those powers to his agent.

Cyber Intestacy? Yeah, There’s That.

What happens to your Facebook, Twitter, and Instagram persona when you die? You might want to consider that question. 

Gonna Be a Prince of a Mess

Well, I guess since Prince didn’t have one, you don’t need one either . . .

Prince’s sister has said the superstar musician had no known will and that she has filed paperwork asking a Minneapolis court appoint a special administrator to oversee his estate.

Something tells me this will neither go smoothly nor end well.

(You Gotta) Plan to Be a Rothschild

From Bloomberg:

“For more than a half-century, Mr. Bartley’s Burger Cottage has been a Harvard Square institution. Six days a week, college students line up around the block for creations that include the People’s Republic of Cambridge, a hamburger topped with coleslaw and Russian dressing, and the Chris Christie, which is fortified with marinara sauce and mozzarella. General Manager Bill Bartley was born in 1960, the same year his father, Joe, started the Cambridge, Mass., restaurant. Although all four of his siblings have worked there at some point in their lives, Bill is the only one still there. ‘I was groomed to take over, like a veal calf,’ he jokes. ‘They kept me in that confined area in the kitchen so I didn’t get too big.’

“Mr. Bartley’s is somewhat of a rarity: Only about a third of family-owned businesses survive into the second generation, 12 percent make it into the third, and a mere 3 percent to the fourth, according to the Family Business Institute. ‘Succession planning has become a hot item with every organization we work with,’ says Castle Wealth Advisors’ Gary Pittsford, an Indianapolis-based financial planner. ‘There are more than 27 million closely held businesses, and baby boomers are now in that 65 to 70 age bracket. There’s upwards of 5 million boomer owners trying to figure out what to do.’”

LinksI’ve read similar statistics year in and year out, and yet family business succession planning–including succession on family farms and ranches–remains an issue. I’m guessing those who haven’t done it, but should, have two reasons or excuses: 1. I’m too busy right now, and 2. it costs too much.

In response to the first, I’d remind them, none of us have time; we’re all very busy. And that will never change, so you’re going to have to change your priorities.

In response to the second reason, I’ll repeat what I’ve said before, because it obviously needs saying again: if you think succession planning costs too much, you ought to see what it costs when you  don’t do it. Remember this little fact from the quote above:

 “Only about a third of family-owned businesses survive into the second generation, 12 percent make it into the third, and a mere 3 percent to the fourth . . .”

I don’t have the facts at hand, but I’ll bet those businesses that make it to the 2nd, 3rd, and 4th generations are successively much better off than the same business in the generation before.

Quote for the Day

“An often-neglected requirement of federal crop insurance is that the insured producer maintain complete records of crop production, harvesting, disposition, and inputs.  Farm clients should be advised that they are to keep records of production and marketing for each crop by insurance unit.  These records are an extremely valuable asset to the modern row crop operation, as records of production may be needed to validate farming practices or the production history of an individual farm or farm operation.  The failure to provide these records when requested can lead to claim denial or revision of insurance guarantees, impacting the level of protection a policy provides the policyholder.”

Grant Ballard, “Farm Clients & Federally Reinsured Crop Insurance: What Clients Need to Know,” WealthCounsel Quarterly, July 2015

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