What is a Discretionary Trust?

Discretionary Trust DefinitionDiscretionary Trust Definition

Key Takeaways

  • Discretionary trusts give trustees the power to decide how and when to distribute trust assets and income to beneficiaries.
  • Discretionary trusts can be used for a variety of purposes, such as tax planning, asset protection, and providing for minor or disabled children.
  • Beneficiaries do not have an automatic right to receive distributions from a discretionary trust.
  • Trustees must act in the best interests of the beneficiaries, but they have a great deal of flexibility in how they do this.
  • Consultation with an estate planning attorney and financial advisor is critical to understanding the implications and benefits of setting up a Discretionary Trust.

How Do Discretionary Trusts Work?

A discretionary trust is a type of trust that gives the trustees the full discretion to decide how and when to distribute the trust assets to the beneficiaries. This flexibility can be useful for various purposes, such as tax and estate planning options, asset protection, and providing for minor or disabled children.

Here’s a high-level overview of the process:

Step 1: Establishing the Trust

  • Settlor: The settlor creates the trust establishing guidelines for management and distribution. The trust can be created while still alive (living trust) or as part of a last will and testament (testamentary trust.)
  • Funding: The settlor funds the trust by transferring assets such as money, property, or investments into it, which the trust then legally owns.
  • Trust Deed: Also known as a trust agreement, this legal document outlines the trust rules, including the powers and limitations of the trustees, intended beneficiaries, and administrative instructions.

Step 2: Role of the Trustee

  • Decision-making: The trustee(s) have the discretion to decide how the income or capital of the trust is distributed among the beneficiaries, abiding by the rules established in the trust deed.
  • Management: Trustees manage the assets, which may involve investment decisions, to enhance the value of the trust or generate income for beneficiaries.
  • Distribution: They decide on the allocation of resources and distribute funds. Determining which beneficiary receives what, when, and how often with the ability to assess the beneficiaries’ varying needs.

Step 3: Beneficiaries and Distributions

  • Potential Beneficiaries: Unlike fixed trusts, beneficiaries do not have an automatic entitlement to the assets or income of the trust. They are potential recipients, and the receipt of their benefits is at the trustee's discretion.
  • Variable Distributions: The trustee may alter the distributions over time in response to the changing needs and circumstances of the beneficiaries, guided by any provisions or intents outlined by the settlor.
  • Protection: Often, because beneficiaries do not have a fixed interest, their potential share in a discretionary trust may be protected from creditors or in legal settlements, depending on jurisdictional laws.

Step 4: Compliance and Oversight

  • Regulations: The trust must operate within the legal and regulatory framework applicable to its jurisdiction, which may pertain to tax obligations, reporting requirements, and beneficiaries' rights.
  • Oversight: Depending on jurisdiction, there may be oversight mechanisms to ensure the trust is managed in the best interests of the beneficiaries and adheres to the settlor’s intent.
  • Recordkeeping: Trustees are typically required to keep detailed records of the trust's management, investments, and distributions to ensure transparency and compliance.

Step 5: Duration and Termination

  • Duration: Trusts may operate for a specified term or continue perpetually, depending on local laws and the settlor’s intentions.
  • Termination: Upon reaching its termination point, dictated by the trust deed or applicable laws, the trust’s assets are distributed among the beneficiaries as per the trustee’s discretion or any final wishes of the settlor.

The trustees must act in the best interests of the beneficiaries, but they have a great deal of flexibility in how they do this. For example, they may decide to distribute more assets to one beneficiary than another, or they may decide to withhold distributions from a beneficiary altogether.

Consulting with an estate planning attorney and financial advisor to fully understand the implications, costs, and benefits is crucial before deciding whether a Discretionary Trust is the right choice for you.

Estate planning involves a wide range of trusts that cater to specific situations and unique requirements. Learning about the different types of trusts available is essential to make an informed decision.

What happens to a discretionary trust when the beneficiary dies?

Here is what typically happens when a beneficiary of a discretionary trust dies:

The assets in the trust do not automatically form part of the deceased beneficiary's estate. They remain in the trust. The deceased beneficiary's entitlements under the trust also cease.

If the beneficiary had been receiving regular income distributions, these will stop upon their death. The remaining trust beneficiaries can receive distributions at the trustees' discretion.

The trustees will review the trust deed to check for any specific provisions relating to the death of beneficiaries. Some deeds specify that the deceased's children become eligible beneficiaries. Based on their circumstances, the trustee decides if and how much money to distribute to any remaining or new beneficiaries.

Can you remove a beneficiary from a discretionary trust?

It is generally possible to remove a beneficiary from a discretionary trust, but the process and implications will depend on the specific trust deed and situation:

The trust deed may allow trustees to remove one or more beneficiaries for specific reasons, like criminal activity or bankruptcy. There may be specific procedures to follow. The trustees cannot arbitrarily remove a beneficiary if the deed does not explicitly allow it. All beneficiaries must typically consent.

Can a beneficiary be a trustee of a discretionary trust?

Yes, a beneficiary can be a trustee of a discretionary trust, but extra precautions must be taken. With the proper limitations and oversight, having a beneficiary trustee can work.

Potential issues to consider with a beneficiary-trustee:

  • Conflict of Interest - There could be a conflict between their trustee duties and personal interest as a beneficiary.
  • Biased/Unfair Distributions - They may favor themselves over other beneficiaries when making distribution decisions.
  • Legal Challenges - Dissatisfied beneficiaries could legally challenge distributions made.
  • Tax Implications - Beneficiary-trustee may be taxed on all trust income distribution.

Ways to manage the risks:

  • Appoint them as co-trustees with others to enable joint decisions.
  • Exclude them from distributions while acting as trustee.
  • Include provisions in the trust deed to help protect impartiality.
  • Use professional advisors and documentation to evidence fair dealing.
  • Require unanimous approval of all trustees for important decisions.
  • Allow other beneficiaries to change trustees if unsatisfied.

Have an experienced estate planning attorney review the trust deed to ensure that it is drafted in a way that helps protects the interests of the trust and the other beneficiaries.

Is a discretionary trust revocable or irrevocable?

Discretionary trusts can be either revocable or irrevocable, depending on the terms in the trust deed and the settlor's intentions (the individual who establishes the trust).

Revocable Discretionary Trusts:

  1. Settlor’s Control: The settlor maintains control over the trust’s assets and can alter or terminate the trust at any point.
  2. Flexibility: Offers flexibility to adapt to changes in the settlor's circumstances or wishes.
  3. Taxation: Generally, the assets within a revocable trust are treated as belonging to the settlor for tax purposes.
  4. Asset Protection: Typically provides less asset protection since the assets are still considered to belong to the settlor.

Irrevocable Discretionary Trusts:

  1. Permanent Decision: Once established, an irrevocable trust usually cannot be altered or revoked by the settlor.
  2. Asset Protection: Provides a higher degree of asset protection from creditors or legal actions against the settlor.
  3. Tax Implications: The assets in an irrevocable trust are typically removed from the settlor’s estate for tax purposes, potentially providing tax benefits.
  4. Limited Control: The settlor gives up control over the assets, and changes typically cannot be made without the consent of the trustee and possibly the beneficiaries.

Key Considerations:

  • Intention of the Settlor: Whether the trust is revocable or irrevocable will depend mainly on the settlor’s objectives, such as tax planning, asset protection, or flexibility.
  • Legal and Tax Implications: The legal and tax consequences of establishing either type of trust vary significantly and play a crucial role in determining which trust to establish.
  • Jurisdiction: Different jurisdictions have varying rules and implications regarding revocable and irrevocable trusts.
  • Beneficiary Considerations: The impact on beneficiaries, in terms of their current and future potential benefits, will vary between a revocable and irrevocable trust.

Choosing between a revocable and irrevocable discretionary trust involves weighing the need for control and flexibility against asset protection considerations and income tax implications.

What Are the Benefits of a Discretionary Trust?

Discretionary Trusts offer many benefits, making them popular in estate planning and wealth management. Here's a breakdown of some of the key advantages:

  1. Flexibility: The trustees can adapt distributions to the changing needs and circumstances of the beneficiaries. They allow adaptive investment strategies to enhance or preserve the trust’s assets. Able to accommodate the varying financial needs and situations of beneficiaries over time.
  2. Asset Protection: A discretionary trust can help protect assets from creditors or claims against beneficiaries, depending on jurisdiction. It facilitates safeguarding family wealth across generations, potentially protecting it from dilution.
  3. Tax Management: The ability to distribute income among beneficiaries in lower tax brackets can optimize the overall income tax liability. Depending on regional tax laws, it might enable beneficial treatment of capital gains. It can be structured to mitigate potential inheritance or estate tax exposures.
  4. Contingency Planning: Offers a framework for beneficiaries in unforeseen circumstances, such as illness or disability. Enables the settlor to make provisions for future generations or beneficiaries who may not yet be born.
  5. Control: Provides a mechanism to ensure the settlor’s wishes are followed, even posthumously. Prevents potential misuse of assets by providing managed, trustee-controlled distributions to beneficiaries.
  6. Legal Benefits: This may provide a layer of protection against beneficiaries’ legal challenges or lawsuit liabilities. In some instances, it may offer protection during beneficiaries’ marital breakdowns.
  7. Confidentiality: Trust affairs are typically not a matter of public record, ensuring a level of privacy for the family's financial matters. Helps protects the details of the beneficiaries and the asset portfolio from public disclosure.
  8. Special Needs Provisions: Can cater to the unique needs of beneficiaries with disabilities or vulnerabilities, ensuring sustained support. May establish frameworks for educational support for beneficiaries.

What Are the Potential Drawbacks of a Discretionary Trust?

  1. Complex Management: Managing a trust involves maintaining accurate records, ensuring regulatory compliance, and possibly dealing with complex tax matters. The discretionary nature means trustees must make nuanced decisions about distributions, which can be complex and potentially contentious.
  2. Cost Implications: Establishing a trust can involve legal, administrative, and potentially other professional fees. Ongoing management might also incur costs. Depending on jurisdiction, trusts can sometimes be subject to specific taxation rules, which might not be as favorable as personal tax treatment.
  3. Potential for Conflict: The discretionary nature and the lack of fixed entitlements can sometimes lead to disagreements or disputes among beneficiaries. Beneficiaries may perceive trustees as biased in their distribution decisions, fostering discontent.
  4. Legal and Regulatory Risks: Laws and tax regulations affecting trusts can change, potentially impacting the efficacy and benefits of the trust. While generally robust, trusts may still be subject to legal challenges, which can be costly and destabilizing.
  5. Limited Beneficiary Control: Beneficiaries, unlike trustees, have limited control over the management and distribution of trust assets. Trustee decisions and discretion may significantly influence the financial well-being of beneficiaries.
  6. Lack of Access to Capital: In some instances, trusts may hold illiquid assets that can be hard to access or sell in the short term. Beneficiaries may sometimes require more immediate access to assets or funds than the trust structure readily allows.
  7. Long-term Commitment: Some trusts, once established, cannot be easily altered or revoked, which might be limiting if circumstances change. Today's Decisions might affect beneficiaries far into the future, sometimes with unintended consequences.
  8. Ethical Considerations: There may be ethical considerations regarding the equitable treatment of beneficiaries and the moral implications of wealth protection. Protecting assets from legitimate claims (e.g., creditors) may raise ethical questions about social responsibility and financial fairness.

It's crucial to weigh the potential drawbacks against the benefits and consult with an estate planning attorney and financial advisor to determine whether establishing a Discretionary Trust is suitable for your estate and create a plan based on individual needs and circumstances.

How Much Does a Discretionary Trust Cost?

Establishing a Discretionary Trust involves several costs, which can vary widely depending on the complexity of the estate, the attorney's fees, and the jurisdiction. While it's challenging to provide a precise cost without specific details, let's explore the general financial components:

  • Attorney's Fees: Legal fees might range from a few thousand dollars to several thousand for a straightforward Discretionary Trust. Attorney's fees can escalate substantially if the estate has numerous assets, diverse investments, or complex family considerations.
  • Trustee Fees: If a bank or a professional trustee manages the trust, fees could be a percentage of the trust's assets annually, often ranging from 0.5% to 2%. Costs for individual trustees might be lower but could still involve compensation and expenses related to trust management.
  • Administrative Costs: Costs associated with filing the trust documents with relevant authorities. Potential costs related to preparing and filing tax returns for the trust. Management of trust finances might involve accounting fees, especially if the estate is extensive or intricate.
  • Asset Management Fees: Investment advisory fees will apply if the trust's assets are actively managed. Property management fees may be incurred if real estate is held within the trust.
  • Ongoing Operational Costs: Managing and executing income distributions might have associated costs. Ensuring meticulous documentation and record-keeping might involve additional expenses, mainly if professional services are engaged.

Given the range and variability of costs involved in setting up and maintaining a Discretionary Trust, it's crucial to obtain detailed estimates from attorneys, trustees, and other professionals before proceeding.

Is a Discretionary Trust Right for You?

Determining whether a Discretionary Trust is the right choice involves analyzing various personal, financial, and familial considerations, as the suitability of such a trust is unique to every individual's specific circumstances, goals, and needs. Here are several key considerations to evaluate:

Financial Situation:

  • Affordability: Can you manage the initial and ongoing costs of establishing and maintaining a trust?
  • Asset Structure: Do you possess assets suitable for a trust structure, such as real estate, investments, or a business?

Family Circumstances:

  • Beneficiary Needs: Do your potential beneficiaries have diverse, changing, or special needs that a discretionary structure could accommodate?
  • Family Dynamics: Can the family dynamics sustain a trust structure without fostering conflict or discontent among beneficiaries?

Estate Planning Objectives:

  • Wealth Preservation: Is preserving wealth for future generations a primary objective?
  • Legacy Intentions: Do you have specific wishes regarding how your assets should be utilized or distributed after your passing?

Tax Considerations:

  • Tax Efficiency: Could a trust provide a more tax-efficient means to manage and distribute your wealth?
  • Tax Compliance: Are you prepared to navigate and comply with a trust's potentially complex tax obligations?

Control and Management:

  • Control Preferences: Are you comfortable relinquishing direct control over the assets placed into the trust?
  • Management Capacity: Are there individuals capable and willing to act as trustees, managing the trust effectively and fairly?

Legal and Regulatory Environment:

  • Jurisdictional Rules: How do your jurisdiction's legal and tax rules impact the efficacy of a discretionary trust?
  • Legal Protections: Do you require a structure that helps protects your assets against claims or creditors?

Ethical and Moral Considerations:

  • Equitable Treatment: How will the discretionary nature of distributions align with your ethical considerations regarding fairness among beneficiaries?
  • Social and Moral Obligations: Does the trust structure align with your moral viewpoints regarding wealth, societal obligations, and familial responsibilities?

Risk Tolerance:

  • Risk Management: Does a trust align with your risk tolerance and capacity, particularly concerning legal, tax, and financial exposures?
  • Future Uncertainties: How comfortable are you navigating the uncertainties and potential future changes in legal and tax environments?

Special Circumstances:

  • Special Needs Beneficiaries: Do you have beneficiaries with special needs or vulnerabilities that require tailored financial planning?
  • Contingency Planning: Do you need a robust structure to ensure financial stability for beneficiaries in unforeseen circumstances?

When considering a Discretionary Trust, it's important to remember that its value is a personal decision that varies by individual. Seeking professional advice from an estate planning attorney and a financial advisor can help you understand the costs, benefits, and potential implications of choosing to set up a discretionary trust. This information will be crucial in making an informed decision.

Remember, depending on your needs and financial situation, you can use different types of trusts. It is important to take the time to thoroughly research setting up a trust and consider all available options, taking into account your financial objectives, family members, and personal preferences.

It's vital to consult with a legal professional specializing in trust law to ensure that the type of trust established aligns with the settlor's intentions, legal requirements, and the needs of the estate plan beneficiaries.

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