The Uniform Laws Commission attempts to promote stability and consistency in state statutes by promulgating uniform laws that states can use in their own legislative processes. The commission has delved into the area of trusts and estates by publishing a “Uniform Probate Code.” In an attempt to keep up with common practices in the area, a section of the Uniform Probate Code addresses the use of so-called “trust protectors,” a convention that has become more popular in recent years. Florida has modeled its own trust protector statute on this section. The question then arises, what is a trust protector?
While the Florida statute doesn’t use the term “trust protector,” as stated above, section 736.0808 of the 2011 Florida Statutes deals with those who have “powers to direct.” Basically, a trust creator can designate in the trust instrument itself one or more persons to have certain specific powers over the trust and the trustees administering it. Sometimes, this person is given the authority to remove trustees and/or appoint successors. This has the advantage of allowing for some objectivity, rather than allowing a beneficiary with an interest in the trust to shop for successor trustees. A trust protector, also sometimes called a “trust adviser,” may have the right to advise the trustee with regard to the operation of the trust. Trust protectors are also sometimes used as tie-breakers among appointed co-trustees or are given the power to modify the trust if conditions change or it becomes economically inefficient.
The most important thing to remember about a trust protector or adviser is that anyone appointed as such owes a fiduciary duty to the trust and can be liable for any breach thereof. This person needs to understand the reasons for the trust and how the trust is designed to accomplish those goals. He or she has the responsibility of looking over the trustee’s shoulder to ascertain whether the trustee is acting in the best interests of the trust. If you have any questions about trusts, probate assets or how to avoid ending up in probate court, you may wish to consider consulting an experienced Florida estate planning attorney.
Source: The Florida Senate, 2011 Florida Statutes, “ 736.0808 Powers to direct.-,” accessed Jan. 5, 2015