Trust Protector versus Trustee – An Explanation
Although once an uncertainty, Florida law now clearly allows for the inclusion of a Trust Protector by a grantor of a trust. A Florida Trust Protector is a specifically named individual (or entity) identified in a trust who has been granted the right to exercise certain powers. Unlike the role of the trustee, Florida trusts do not have to include a Trust Protector. In fact, the typical, simplified trust does not necessarily assign a Trust Protector. They are far more often found in complicated trusts in which there is a higher likelihood of conflict.
Understanding the Florida Trust Protector vs Trustee Equation
Many Floridians use irrevocable trusts for their tax avoidance or creditor protection objectives.
However, the rigidity and loss of control by the grantor as circumstances of the parties change may be considered a deterrent by some.
Assigning a Trust Protector may allow a trust to be modified as needed in limited circumstances.
In addition to modification of the trust, a Florida Trust Protector may also service different roles such as monitoring the trustee and overseeing the investments of the trust assets.
For this reason, the Trust Protector is often a professional, such as a lawyer or financial advisor, rather than a family member. Trust Protectors are also most often used in more sophisticated, long-term trusts.
Trust Protector versus Trustee
In Florida, every trust must have a trustee. Typically, a trustee manages the general affairs of the trust by monitoring and overseeing the trust assets, paying any expenses, distributing assets when the time comes and corresponding with third parties related to the trust assets.
These powers are usually delineated within the trust document itself.
Conversely, there is no legal requirement for a trust to have a Trust Protector. If a Trust Protector is included in a trust, it is usually a specific requirement of the grantor for a specific purpose or additional protection. Some duties of a Florida Trust Protector may be:
- Change the terms of the trust in accordance with changes in the law to ensure that the grantor’s intentions are best accomplished,
- Monitor the trustee to ensure no breach of fiduciary duty (inadvertent or otherwise) against the beneficiaries,
- Remove the current or successor trustees,
- Help mediate disputes,
- Resolve any ambiguities or uncertainties related to the trust in accordance with the grantor’s objections.
How is a Florida Trust Protector assigned in a trust?
In Florida, the terms of the trust assignment assign the person or entity who will serve as the initial and successor Trust Protectors.
It also this section that states the specific powers of the Trust Protector who, unlike the trustee, may not have general powers over the trust.
The Trust Protector’s powers must be specifically identified in the trust agreement and the Trust Protector will have no authority unless it is expressly stated.
It should be noted, however, that there are several other names by which the Trust Protector may be referenced in the trust agreement such as an advisor or director.
Therefore, it is imperative that the provision be read carefully to determine whether a Trust Protector is in fact assigned and to which duties.
What are the fiduciary duties of the Trust Protector
Florida law states that a Trust Protector has a fiduciary duty toward the beneficiaries of the trust if the trust authorizes the protector to govern the trustee.
And, as with most fiduciaries, if the Trust Protector breaches that duty, they will be held liable for any damages and losses suffered by the estate and/or the beneficiaries as a result of the breach.
Further, the grantor of the trust may include additional requirements for the Trust Protector to possess that goes beyond the usual legal requirements.
Consequently, an assigned Trust Protector may choose not to serve if the qualification requirements are overly burdensome.
Steps to take when appointed as a Trust Protector
When a person is assigned as a Trust Protector, they should first ensure that they wish to serve in that capacity.
First, they should familiarize themselves with the actual trust agreement to make sure they know the authority they hold, the liability exposure, as well as the other parties to whom they owe a fiduciary duty. This may require the assistance of an experienced attorney.
If the duties and requirements are too onerous, then the assignee may elect not to serve as the Trust Protector by providing written notice to the trustee and to the listed beneficiaries.
The trust agreement itself may have a specific process that must be followed to ensure the assigned protector does not remain obligated.
If the assigned Trust Protector elects to serve, then they must be prepared to take on the full responsibility of the role, which can be very involved and taxing.
This role may require the protector to hire an attorney for guidance since the role is so closely linked to the terms of the trust agreement.
Needless to say, the role of a Florida Trust Protector cannot easily be generalized since it depends so closely on the terms of the governing trust agreement.
However, having an assigned Trust Protector can be very beneficial in ensuring that the grantor’s wishes are achieved and protected from trustee abuse. They also serve as a great resource to the parties during the administration of the trust.
While not all trusts require a Trust Protector, it may be worth considering for larger, more complicated, and potentially contested trusts.
To learn more about how we may assist with your role as a Florida Trust Protector, contact us to schedule a consultation call.