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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 provides a real world guide to planning and drafting distribution provisions in trust instruments, including the tradeoffs and risks.
- 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