Evolving Roles in Trust Planning: Advising Fiduciaries, Non-Fiduciaries, and Those in Between

A Live Video Roundtable Discussion

Wednesday, October 28, 2020

1:00-2:30pm EDT

View Recording

Roundtable Moderator:

Vanessa L. Kanaga, Esq., President and Director of Content Development, InterActive Legal

Roundtable Panelists:

Alexander Bove, Jr., Esq., Larry Flournoy, Esq., Judith Pearson, and Frazer Rice

The trust, as a legal concept, has existed for centuries, yet arguably the most significant developments in trusts have occurred in the last few decades. Due to the efforts of the estate planning community, clients now have a better understanding of the benefits offered by trusts, and more clients from a broader range of demographics are adopting trusts as part of their estate plan. This increase in trust use, and a shift in focus to a more collaborative, legacy-focused approach to planning, has also driven the demand for flexibility in trust drafting and administration.

In addition to drafting more flexible trust terms, planners have developed innovative ways to allow flexibility in trust administration, better protect beneficiaries, and foster collaboration among family members and advisors by appointing individuals to serve in non-trustee roles. Ranging from the now familiar Trust Protector to the more recently developed and lesser known Beneficiary Advocate, these progressive roles provide an opportunity to better achieve the goals of the client and the client’s family, preserve the trust for a long term, and promote better harmony among family members and the professionals advising them. However, when incorporating these roles into trust planning, it is important that the estate planner fully understands the scope of each role, the division of responsibilities among the trustee and non-trustee roles, and the potential liability that attaches to each role. Not only is this critical for those advising the individuals appointed to serve, it is important in ensuring that the family understands the plan as a whole.

In this Roundtable discussion, our expert panel will discuss the changing landscape of roles associated with trust planning, and will highlight these important questions planners need to address when drafting trust plans, and advising clients:

• Are Trust Protectors and other non-trustees acting as fiduciaries, subject to fiduciary duties? What is their potential liability?

• Is it possible for a non-fiduciary role to shift to a fiduciary role based on the actions of the individuals serving?

• What are some common mistakes in drafting and administering these roles that could land the trustee or non-trustee (and possibly the drafting attorney) in court?

• What can estate planners and other advisers do to ensure that everyone is on the same page when it comes to the division of responsibilities among trustee and non-trustee roles?

Our Roundtable Moderator:

Vanessa L. Kanaga, Esq., President and Director of Content Development, InterActive Legal  ^

Vanessa Kanaga joined InterActive Legal in 2013 and serves as President and Director of Content Development. In her role, Vanessa oversees the development of InterActive Legal program content, in addition to working with CEO, Michael L. Graham, to guide the company in its future direction, and manage day-to-day operations. Vanessa received her J.D. from Cornell Law School, Magna Cum Laude, in 2006, and holds a B.A. in Philosophy from Wichita State University, with a minor in Music, as well as an Advanced Professional Certificate from New York University School of Law. Following law school, Vanessa practiced in New York for several years, at Milbank, Tweed, Hadley & McCloy, LLP, and then Moses & Singer, LLP. In 2012, she returned to her home town of Wichita, Kansas, where she was an associate attorney in the estate planning and probate practice group at Hinkle Law Firm, LLC, before joining InterActive Legal.

Our Roundtable Panelists:

Alexander A. Bove., Jr., Esq. ^

Alexander Bove is an internationally known and respected trust and estate attorney with over thirty-five years of experience. He is Adjunct Professor of Law, Emeritus, of Boston University Law School Graduate Tax Program, where he taught estate planning and advanced estate planning for eighteen years. Previously, he taught estate planning at Northeastern University Law School.

Mr. Bove is frequently asked to serve as an expert witness in matters requiring extensive knowledge and experience in the field of trusts, wills, and probate, with emphasis on the role of the trust protector. Among numerous other cases, Mr. Bove served as expert witness in the MacLean case (Missouri), the first significant U.S. case on Trust Protectors. He is the author of Trust Protectors – A Practice Manual With Forms (the only United States work on the subject).

Larry Flournoy, Esq. ^

Larry Flournoy is a trial lawyer whose practice focuses on lawsuits involving trusts and estates. He represents executors, trustees, beneficiaries and others who are involved in lawsuits governed by the Texas Estates Code (formerly Texas Probate Code) or the Texas Trust Code. This specialized litigation often involves such matters as will contests or breaches of fiduciary litigation, but it can also involve contested guardianship matters or accountings.

Larry is a Past Chairman of the Probate, Trust and Estate Section of the Dallas Bar Association, former Executive Council Member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas, and member of the State Bar’s Pattern Jury Charge Committee for Probate, Trusts and Guardianships. He was also named a Texas Super Lawyer for 2013-2019.

Judith Pearson ^

Judith Pearson is a seasoned insurance industry and risk management expert who leads the Family Office & Trustee Liability Resource Group for Woodruff Sawyer. Judith has an expertise in identifying, mitigating and transferring risk for wealth transfer vehicles. Judith works to educate trustees and other fiduciaries to reduce risk as well as implement insurance solutions to transfer risk which surpasses what’s currently available in the marketplace.

Ms. Pearson has been a frequent speaker at Trust and Estate Forums, ABA Trust School.  Additionally, Ms. Pearson has been quoted in The Wall Street Journal, New York Times, The Economist, Chicago Sun Times, LA Times, Art and Auction Magazine and has written articles for Trust & Estates, Wealth Management and Estate Planning Magazines.

Frazer Rice ^

As a Regional Director for Pendleton Square, Frazer Rice focuses on building relationships in the Northeastern United States. In this role, he works with families, their professional advisors and members of the Pendleton Square team in developing and implementing fiduciary services designed to meet family objectives.

Frazer is the author of “Wealth, Actually: Intelligent Decision-Making for the 1%”, and host of the “Wealth, Actually” podcast. Frazer serves on multiple non-profit and business advisory boards and is a non-practicing member of the New York State Bar. He is a graduate of Emory University School of Law and has an A.B. in history and political science from Duke University. Living and working in New York City, Frazer is an avid golfer and enjoys writing, traveling, and media production.

CLE Credits

InterActive Legal is not an approved Continuing Education Sponsor. However, several states and regulatory agencies for a variety of professionals that participate on our teleconferences may still receive continuing education credit for their participation. If a participant wishes to receive CE credit for their participation in these teleconferences, they must apply to receive credit on their own and through their individual states and regulatory authorities. It is the responsibility of the participant to file for CE credit and is not guaranteed by InterActive Legal.

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