Drafting Distribution Provisions in Trusts

Distribution provisions are the most essential provisions of trust instruments – and risk lurks everywhere.  If a trustee has unbounded discretion, he or she risks a “general power of appointment,” which would cause the trust’s assets to be taxable to the holder of the power of appointment.  But distribution standards – especially for “standard of living” or “emergencies” – are inherently susceptible to multiple interpretations and dispute, and potentially to litigation.  Ultimately, planning and drafting these provisions is an exercise in risk management and tradeoffs.  This program will provide you with a real world guide to planning and drafting distribution provisions in trust instruments, including the tradeoffs and risks.

Schedule:

• Risks of discretionary distributions – power of appointment, taxable inclusion, litigation
• Cost/benefit of heavily detailed v. general distribution provisions
• Ascertainable standards – health, education, maintenance, and support (HEMs)
• Drafting sole and absolute discretion, emergencies, best interests, and standard of living
• Role of fiduciary duties in making distribution decisions
• Tax considerations when making distributions