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February 23, 2011
Because I Said So! A Practitioner's Guide to Preserving the Client's Intent when Disposing of the Family Business to an Irrevocable Trust
Richard P. Breed, III, Esq.1

A version of this article appeared in the March 2011 issue of Estate Planning, Volume 38, Number 3, © 2011, Thomson Reuters.

Joseph was a successful businessman during his lifetime and died owning a majority stake in a newspaper empire.  Joseph provided for his estate to be held in trust for the benefit of his sons and then the remainder to be distributed among his descendants.  Joseph's Will authorized the Trustees to sell any asset; however, the Trustees were expressly prohibited from selling the stock of one specific entity – the Press Publishing Company, publisher of The World and two other newspapers.  In his Will, Joseph stated:

I particularly enjoin upon my sons and my descendants the duty of preserving, perfecting and perpetuating 'The World' newspaper (to the maintenance and upbuilding of which I have sacrificed my health and strength) in the same spirit in which I have striven to create and conduct it as a public institution, from motives higher than mere gain, it having been my desire that it should be at all times conducted in a spirit of independence and with a view to inculcating high standards and public spirit among the people and their official representatives, and it is my earnest wish that said newspaper shall hereafter be conducted upon the same principles.2

The newspaper empire continued to do well following Joseph's death; however, approximately fifteen years later, the newspapers started to decline.  The newspapers were operating at a dramatically increasing loss over the seven years preceding the Trustees' action seeking construction of Joseph's Will to determine if it authorized them, despite the instrument's explicit language, to sell the Press Publishing Company.  Although the Trustees demonstrated evidence in the instrument that Joseph contemplated the sale of Press Publishing Company's stock in certain emergencies, the Court opted to use its equitable powers to, in emergencies, "protect the beneficiaries from serious loss or total destruction of a substantial asset of the corpus."3  The Court held that in the event of a necessity, there is an implied power to sell despite express language prohibiting such sale, and therefore authorized the Trustees of Joseph's Trust to sell the stock of Press Publishing Company.  The Court derived this "implied power to sell" on the law's assumption that "a testator had sufficient foresight to realize that securities bequeathed to a trustee may become so unproductive or so diminished in value as to authorize their sale where extraordinary circumstances develop, or crisis occurs."4  The Court concluded that Joseph's dominant purpose in establishing the Trust was to support his children and to preserve the trust corpus for his remaindermen, and not to retain the newspapers, out of pure vanity, under all circumstances, including the complete destruction of the trust corpus.  Although Joseph may have hoped that the newspapers would continue to be successful, the Court determined that "he must have contemplated that they might become entirely unprofitable and their disposal would be required to avert a complete loss of the trust asset."5

Introduction

The example of Joseph Pulitzer reminds us as estate planners that despite our attempted skillful memorialization of our clients' expressed intent, there remain forces outside our control, namely the Courts, the beneficiaries, the Trustees, and legislation, which may work against our clients' wishes.  Such intervention is often appropriate, e.g., enabling flexibility when unanticipated circumstances arise.  However, there remains the possibility that our client's intent, something that was so clearly expressed to us during our meetings with him, will be abandoned after he dies.

This article is intended to provide estate planning practitioners with a guide to best accomplishing our client's intent for the administration and disposition of his estate after his death.  In particular, I will focus on planning and drafting for the client whose estate is mostly comprised of a business owned and operated by the client and his family.  Because this business is the source of the client's wealth and success, often significantly changing the client's family's circumstances, the client may have specific objectives regarding the business's operation and management after his death.  As planners, it is our responsibility to articulate and memorialize his intent in the documents we prepare and the estate planning we implement.

Overview

The article will first briefly highlight specific areas of the law, common and statutory, that currently exist to construe the instruments we draft, and therefore should be familiar to the estate planning practitioner.  This universe is comprised of case law, the Uniform Prudent Investor Act and the Uniform Trust Code.  Because these uniform laws are enacted in varying versions among the states, the model uniform laws, as promulgated by the National Conference of Commissioners on Uniform State laws, will be used unless specifically referenced otherwise.  Following this overview, the article presents a fact pattern for a sample entrepreneurial client.  The subsequent analysis will discuss the potential problems and proposed solutions for my sample client's planning.

Applicable Law

Three scenarios permitting a judicial override, or "equitable deviation,"6 of the Settlor's expressed intent are notable in case law – (1) an implied intent to sell in an emergency;7 (2) invalidity of the Settlor's expressed intent because it is contrary to (economic) public policy;8 and (3) modification because of unanticipated circumstances.9

As described above, the Pulitzer case was decided based on the Court's equity power to intervene when an emergency, i.e., the eminent failure of the enterprise funding the Trust, was posing a serious threat to the trust corpus.  The Court took the position that it needed to "protect the beneficiaries" from such loss and held there was an implied power to sell because of the emergency, despite express language in the instrument to the contrary.10  The Court analyzed Pulitzer's intent and determined that his "dominant purpose" in establishing the Trust was to benefit his family, and language imploring his sons and more remote descendants to retain Press Publishing Company, and in particular, The World newspaper, was determined to be only a precatory direction to his descendants.

In Colonial Trust, another entrepreneur, Robert Brown, died owning real estate in Waterbury, Connecticut.  In his Will, Brown made several specific directions regarding the management of real estate: (i) the Trustees were forbidden to sell either Brown's homestead or the "Exchange Place" property; (ii) no lease of any of Brown's real estate could exceed one-year; and (iii) no building constructed on any of Brown's land could exceed three stories.11  The Court agreed that it was Brown's intent to have the Trustees retain the Exchange Place property and his homestead; nonetheless, it held the prohibition from selling the properties invalid because it was an impermissible attempt to restrain alienation until the termination of the Trust, which may exceed the expiration of the lives in being plus twenty-one years.12  The Court also held invalid the restriction on leasing and constructing buildings greater than three stories.  The Court concluded that these "imprudent and unwise" limitations were contrary to be interests of the beneficiaries.13  However, the Court based its invalidation of these restrictions on their negative effect to the neighborhood, stating such restrictions:

. . . make it impossible to obtain from [the properties] proper income return or to secure the most desirable and stable class of tenants, requires for the maintenance of the buildings a proportion of income greatly in excess of that usual in the case of such properties, and will be likely to preclude their proper development and natural use.  The effect of such conditions cannot but react disadvantageously upon neighboring properties, and to continue them, as the testator intended, for perhaps seventy-five years or even more, would carry a serious threat against the proper growth and development of the parts of the city in which the lands in question are situated.14

Because of the harm these restrictions caused to the public welfare, namely the economic development of the neighborhood, they were held to be invalid violations of public policy.

The third case, Donnelly, did not involve a business owner, but a wealthy testator, D. I. Cornell, whose Will provided for an annual payment of $750 to be made to his grandson provided he was enrolled and in good-standing as a student in a degree-granting college, university or post-graduate school.15  The Will also provided for the payments to cease no later than December 31, 1945.  While Cornell's grandson was pursuing his law degree, he was ordered to active duty as a U.S. Marine for the following three years.  The Trustees refused to reinstate the grandson's payment following his return from WWII and to law school because the time limit of December 31, 1945 had passed.  Sitting in Cornell's shoes, the Court stated that it must determine "what it conceives would have been done by the creator had he foreseen the situation of his beneficiary in a substitution of another course in order to the complete realization of the settlor's purposed bounty."16  The Court determined that Cornell's intent was to give his grandson $750 a year to complete his college and professional education, and that Cornell neither foresaw WWII nor his grandson being called to active duty during his post-graduate education.17  The Court concluded that because of this unforeseen circumstance, and despite the express language in the Will, the Trustees were to continue to make the annual payments to his grandson in order to fulfill Cornell's intent.18

The Court's willingness to intercede and deviate from the express terms of a Trust in the event of emergency, a violation of public policy, or unanticipated circumstances demonstrates that the Settlor's intent, as it is explicitly stated in our instruments, may not be enforced under all circumstances.

The Uniform Prudent Investor Act (the "Act") was intended to reform existing trust investment law and addressed, in part, the Trustee's (i) duty to diversify, (ii) determination of "risk and return" objectives for the Trust; and (iii) delegation of investment responsibilities.19  The Act specifically states that its rules are default rules that the Settlor can "alter or abrogate."20  Let us examine the Trustee's "duty to diversify" under the Act as it relates to the Settlor's expressed intent.

Section 3 of the Act states, "A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying."21  The Comment to Section Three of the Act continues by stating:

Circumstances can, however, overcome the duty to diversify.  For example, if a tax-sensitive trust owns an underdiversified block of low-basis securities, the tax costs of recognizing the gain may outweigh the advantages of diversifying the holding. The wish to retain a family business is another situation in which the purposes of the trust sometimes override the conventional duty to diversify.22 

For example, a Trustee, after determining that the sale of the Trust's high concentration of illiquid, low-basis stock in a closely-held business would not generate sufficient liquidity to produce an income equal to or in excess of the dividends being generated by such stock, and who decided not to diversify the trust's investments, was held not to have violated the New York Prudent Investor Act.23

The client's intention to opt-out of the Act is generally evidenced by trust language that supplants the Act's duty to diversify, such as authority for the Trustees to "retain any stock or other interest in any business, irrespective of the fact that such stock or other interest may constitute what otherwise might be regarded as an unduly large portion of the trust estate."  Even without such language, the Trustee's retention of the client's business may be a "special circumstance" under which the Trustee is not required to diversify under the Act; however, it leaves uncertainty in the administration of the Trust after the client's death if the Settlor's intention to override the Act is not expressly stated.

Unlike the Act, the Uniform Trust Code (the "UTC") is not a purely "default rule" in the jurisdictions24 in which it has been enacted.25  Section 105 of the UTC sets out fifteen mandatory rules for Trusts,26 including provisions which may be inconsistent with the client's intent, such as (i)"the requirement that a trust and its terms be for the benefit of its beneficiaries, and that the trust have a purpose that is lawful, not contrary to public policy, and possible to achieve;"27 and (ii) "the power of the court to modify or terminate a trust under Sections 410 through 416 [of the UTC]."28

The first mandatory rule, the "benefit the beneficiary" rule, has been cited as setting "outer limits on the Settlor's power to abridge the default law."29  Other than provisions which are unlawful, contrary to public policy or impossible which Section 105(b)(3) lists, when would the Settlor's expressed intent not benefit the beneficiary?  Most often, our clients' primary objective is to benefit their beneficiaries.  Language governing the retention and operation of the client's business is usually a means to an end – the ultimate benefit of his beneficiaries.  As the Court in Pulitzer concluded, it is rare to have a client so vain as to want, following his death, his failing business to continue despite the catastrophic detriment to his family.30  However, the continued ownership and operation of the client's successful business is also not per se for the "benefit of the beneficiary," especially if it is an objective "best economic interests of the beneficiary" test.  For example, client's daughter requests Trustee to sell the family business because diversifying the investment of the net proceeds would produce more liquidity and less risk for the beneficiaries of the Trust.  Is the client's expressed direction to retain the family business violative of the "benefit the beneficiary" rule because of the economic benefit a sale of the businesses may produce?  Some, who are well versed in the "benefit the beneficiary" rule, say "yes."31  Assuming the answer is "yes," this is a noteworthy erosion of our client's ability to govern the ownership and operation of his business after the client's death.32  Nonetheless, this risk should not discourage the practitioner from expressing the Settlor's intent to retain the business throughout the instrument.  Even in a state that has adopted the UTC, the Court reviewing the Trust may refuse to apply such a broad application of the "benefit the beneficiary" rule and instead enforce the Settlor's intent as expressed.

The UTC also prohibits a Trust from limiting the Court's power to modify or terminate as provided by Sections 410 through 416.33  Section 411 of the UTC provides:

A noncharitable irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust.  A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.34

Both judicial proceedings require the Court to determine the "material purpose" of the Trust.  This standard is derived from the holding in Claflin, in which the Court refused to accelerate a young beneficiary's inheritance because it was not the testator's intent for his son to receive the entirety of his share at age twenty-one, but in three installments at ages twenty-one, twenty-five and thirty as his Will specified.35 The Court determined that the "purposes of the trust" would not be accomplished if it permitted a modification to the trust instrument contrary to the Settlor's intent.36

A procedure to modify or terminate the Trust often allows for some desired flexibility in the administration of the Trust, such as in the event the needs of a beneficiary unexpectedly change because of a disability.  To maintain this flexibility, but still to protect the client's intent, the practitioner would be wise to expressly state the "material purpose" of the Trust in the instrument.  Alternatively, a client may be concerned by this perceived "easy" avenue to override his choices regarding the administration and dispositive provisions of his Trust, including its premature termination.  To protect the client's intent, the practitioner may want to include language expressly stating that a termination or modification would be contrary to the Trust's "material purpose."37

Planning Strategies for Sample Client

Mr. Client, a seventy-five year old widower, is a successful entrepreneur.  During his lifetime, he has amassed a large commercial real estate empire.  Despite his age, Mr. Client is still very active in the management of the enterprise, Family Co., which purchases, sells, develops and leases commercial properties.  Mr. Client has four adult children, but his sole daughter is the only offspring involved in the family business.  The success of Family Co. has provided a very comfortable lifestyle for Mr. Client's family.  Mr. Client's three sons receive a generous salary from Family Co. for their 'consulting" services, which supports their respective families.  Mr. Client has an existing estate plan, drafted prior to his wife's death and the accumulation of the majority of his wealth, which provides for his estate to be divided into equal shares for his children.  Each child's trust share will continue in trust for his or her lifetime and will then be distributed to the deceased child's children upon his or her death.  Mr. Client's brother, seventy-two years old, is currently named as successor Trustee to serve upon Mr. Client's death or incapacity.  There are no specific directions in Mr. Client's estate plan to provide for the retention and management of Family Co.; however, there is a general provision that authorizes the Trustee to retain the stock in any business owned by Mr. Client at his death, irrespective of the portion such stock comprises of the entire trust corpus.

Mr. Client is aware of the void in his estate plan to provide for the succession of Family Co., but is paralyzed to make any changes because a solution is not obvious to him.  Mr. Client simply wants the status quo – the operation of the business and the support of his family – to continue after his death.  During an initial meeting with Mr. Client, he expressed the following un-prioritized goals: (1) provide for the continued financial support of his sons and their families so they can maintain their current standard of living; (2) provide for his daughter to succeed him in managing Family Co. and authorize her to make all decisions, without any limitation, regarding its operation and management; and (3) provide for the continued operation and ownership of Family Co. by the Trust for the ultimate benefit of his children and future descendants.

There are a number of apparent problems in Mr. Client's current estate plan: (1) selection of successor Trustee; (2) silence as to intent for continued ownership and operation of Family Co.; (3) silence as to delegation of decision-making concerning Family Co. to Mr. Client's daughter; and (4) silence as to intent to provide for sons and their families.  If Mr. Client died tomorrow without updating his estate plan, his brother, as successor Trustee, may not be aware of Mr. Client's objectives.  The Trustee would likely, with the advice of counsel, analyze if diversification of the trust investments was necessary, and may consider and pursue a sale of Family Co. to generate liquidity to provide for the needs of Mr. Client's children and grandchildren.  Until the sale of Family Co., or if Family Co. is retained, Mr. Client's daughter would not have any express authority under the trust instrument to operate the business.  Mr. Client's brother, as Trustee, will likely rely on his niece's advice and expertise concerning the operation of the enterprise; however, he will have to balance the needs of the business with the needs of all of his beneficiaries and may decide, against his niece's advice, to declare a large dividend to provide liquidity for the Trust.  Mr. Client's brother is also not aware of Mr. Client's concern to support his sons and may decide not to made distributions necessary to continue their lavish lifestyle, especially when his niece protests to the extraordinary large distributions made to them and the smaller distributions made to her.  The silence in Mr. Client's estate plan as to his intent will lead in an unpredictable mess to be sorted out by his Trustee and his children.  The death or resignation of an elderly Trustee, possible pre-existing resentment among his family, and turbulence with Family Co. after Mr. Client's death may exacerbate the problem and lead to costly litigation.

Although every client is different, the following is a list of considerations and possible solutions for Mr. Client's estate planning attorney:

1. Clearly express Mr. Client's intent for the Trust to own and operate Family Co., including his wishes for the business during his children's lifetimes and after they are all deceased.

Understanding and correctly expressing Mr. Client's intent is not as easy as it sounds.  As discovered during the initial meeting, Mr. Client is paralyzed from making a decision because he doesn't know how his goal of "maintaining the status quo" can be effected after his death.  The practitioner should continue the conversation with Mr. Client to help him identify and prioritize his goals.  As mentioned above, generally the client's primary goal is to provide for his family, which will need to be refined depending on the varying circumstances of the beneficiaries.  However, the practitioner will not discover these nuances unless she has an in-depth discussion with Mr. Client.  In the trust instrument, the practitioner should state whether Mr. Client wants a complete prohibition of the sale of Family Co., or if Mr. Client wants the ownership of Family Co. to continue only under certain circumstances.  The practitioner should review with Mr. Client whether there are any "do's" or "don't's" regarding the retention of the business, and whether these rules vary depending on which children, if any, are alive.  The practitioner should identify which directions are appropriate for the trust instrument versus a "side letter" (discussed below).  Mandatory directions generally fall into the former category, while discretionary, albeit important, directions generally fall into the latter category.  The practitioner should also discuss the stark reality that Family Co. may not succeed after Mr. Client's death and memorialize Mr. Client's intent for Family Co. under those circumstances.

2. Establish an Investment Advisor or Committee to made decisions regarding Family Co. and clearly identify how the responsibilities of this investment fiduciary are to interact with the duties of the Trustee.

Mr. Client would like his daughter to handle all matters relating to Family Co. after his death.  However, having her serve as Trustee and also make decisions regarding trust distributions to her siblings, nieces and nephews may not be appropriate.  The bifurcated delegation of these two roles to an Investment Advisor and a Trustee may meet Mr. Client's goals.  However, a problem may arise concerning the overlap and inconsistencies between the duties of each fiduciary.  For example, the following issues should be anticipated and dealt with in the trust instrument: (i) if the Trustee determines that there is a need for liquidity, can he compel the Investment Advisor to liquidate Family Co. or declare a dividend; (ii) can the Investment Advisor appoint herself as a director or officer of Family Co., and are any related conflicts of interests waived; (iii) does the Investment Advisor have to consider the needs of the beneficiaries when making a decision to liquidate or pay a divided; (iv) can any of the Investment Advisor's decisions regarding the retention or sale of Family Co. be challenged; and (v) should the Trustees have a "put" on Family Co. stock to force the redemption of such stock to create liquidity.

As an alternative to establishing a separate office to manage Family Co., the Trustee can delegate this responsibility to Mr. Client's daughter.  Section 9 of the Act permits the Trustee to delegate his investment and management responsibilities provided the Trustee exercises "reasonable care, skill and caution" in (i) selecting the agent; (ii) establishing the terms and scope of the delegation; and (iii) periodically reviewing the agent's actions to monitor the agent's performance and compliance with the delegation.38  If the Trustee's delegation meets these requirements, he is not liable for his agent's actions.39

3. Clearly express what provisions of the Act and the UTC will not apply, especially as to the Trustee's duty to diversify, as well as the "material purpose" of the Trust to address possible judicial actions to modify or terminate the Trust.

As discussed above, the Act serves as the default law for trust investments unless the Settlor provides otherwise.40  In particular, to ensure that the duty to diversify under Section 3 of the Act will not apply, the practitioner should include specific language authorizing the retention of Family Co. notwithstanding it may comprise a large percentage of the Trust.41  In addition, if consistent with Mr. Client's intent, language relieving the Trustee (or Investment Advisor) of liability for any loss resulting from a decision to retain Family Co. would be appropriate.  To address the provisions of the UTC which are mandatory, the practitioner should consider articulating the "material purposes" of the Trust, such as "to protect trust property from the future creditors of Mr. Client's descendants and to continue the Trust for as long as permitted by law," and "to continue the ownership and operation of Family Co., provided it is operating at a minimal profit necessary to support the needs of Mr. Client's descendants, whatever those needs are, as determined in the sole discretion of the Trustee."  Drafting to discourage modification or termination under all circumstances is not recommended because of the inevitable need for flexibility in the event of unanticipated circumstances that may arise with a long-term Trust.42

4. Prepare a "side letter" for Mr. Client's Trustees to provide them guidance regarding administration of the Trust.

While not legally binding, a "side" letter may provide Mr. Client's Trustee helpful insight into Mr. Client's wishes.  Examples of information for the "side letter" include: (i) circumstances under which Family Co. should be sold or liquidated, such as a medical emergency of a beneficiary; (ii) continued retention of Family Co. provided its dividends generate sufficient liquidity to make distributions to the beneficiaries to maintain their standard of living; and (iii) specific provisions concerning Mr. Client's sons, and that larger distributions may be made to them, versus their sister, to ensure the sons and their families are sufficiently supported to maintain their current standard of living.  As stated above, provisions concerning the administration of the Trust that Mr. Client intends to be mandatory should be drafted into the trust instrument; the "side letter" is more appropriate for Mr. Client's precatory wishes.

5. Involve, either at Mr. Client's death or at the election of the beneficiaries, an independent third party to participate in decision-making regarding the operation and ownership of Family Co., ministerial administration of the Trust, and/or distributions to beneficiaries.

The presence of a neutral third party may defuse a brewing family dispute relating to the administration of the Trust.  However, the selection of an appropriate third party is important for this strategy to be successful.  A large institution, such as a national bank, may not have the flexibility or the interest to manage the Trust, which is largely comprised of stock in Family Co.  A large institution may also not be familiar with the unique circumstances of Mr. Client's beneficiaries.  The large institution's trust committee, which is generally conservative in exercising its discretion, may not be willing to support Mr. Client's sons' extravagant lifestyles.

It may also be appropriate to allow the children, or a majority of them, to name an independent professional to serve as co-Trustee of the Trust (and their respective trust shares).  By allowing the children to appoint, remove and replace the third party among a discrete universe of professionals, such as an attorney, CFO or CPA, there is flexibility to select the appropriate independent person(s).  The practitioner should discuss with Mr. Client the class of potential third parties who may serve as co-Trustee of the Trust – e.g., whether Mr. Client would want to allow a child to name his college roommate or the child's spouse to serve as his co-Trustee.

Finally, instead of having a single Investment Advisor manage Family Co., Mr. Client may consider naming an Investment Committee, comprised of his daughter, the Trustee, the CFO of the Family Co. and a member, independent or not, appointed by Mr. Client's sons, as the entity making decisions concerning the retention, recapitalization, borrowing, expansion, sale and liquidation of Family Co.

6. Provide for non-business assets, such as life insurance or income-producing real estate owned separately from the development and management company, to fund Mr. Client's sons' shares.

Mr. Client may be concerned about separating the control of Family Co. from its ownership.  Considering Mr. Client's daughter is devoting her life to Family Co., is it fair for her "non-participating" siblings to share in its success?  The practitioner should engage in an analysis to determine whether, net of estate taxes, there are sufficient assets to allocate non-business assets to Mr. Client's sons and business assets to his daughter, i.e., a "who get's what and when" chart to review with Mr. Client.  If there are not sufficient non-business assets to equally divide Mr. Client's estate among his children, an alternative is to segregate the commercial rental properties from the real estate development and management component of Family Co.  The revenue from the rental properties may be a source of liquidity for the sons' trust shares and will allow Mr. Client's daughter to benefit from the appreciation in Family Co. that results from her efforts.

An alternative strategy involving the reallocation of business assets among Mr. Client's children's trust shares is for the practitioner to draft a mechanism for the Trustees of the children's trust shares to have a "put" or "call" right over the stock in Family Co. and rules regarding the "trigger events' for the exercise of these rights and the payment for such stock.  As the "participating child," Mr. Client's daughter may want the option to purchase the stock owned by her brothers' trust shares; conversely, her brothers may want the option to sell their stock to generate liquidity and to diversify their trust share investments.  The practitioner should discuss with Mr. Client whether these rights should be unlimited as to their exercise, or only under specific trigger events.  For example, the Trustee of a trust share for each of Mr. Client's sons may want to exercise his respective "put" right in the event the Trustee determines additional liquidity is necessary to pay for the college education of Mr. Client's grandchildren.  Or, for example, the Trustee of Mr. Client's daughter trust share may want to exercise her "call" right if the value of Family Co. appreciates twenty percent since Mr. Client's death.  In addition to the trigger events, the practitioner should discuss with Mr. Client the timing and method of payment for the stock, e.g., a ten-year promissory note with adequate interest and security.

7. If affordable insurance is available, plan for Mr. Client and his daughter to enter into a buy-sell agreement by which she may purchase some or all of Family Co. upon Mr. Client's death.

Another solution for Mr. Client's concern about separating the control of Family Co. from its ownership is to have Mr. Client and his daughter enter into an insurance-funded buy-sell agreement.  Assuming obtaining affordable insurance on Mr. Client's life is not an issue, he and his daughter would enter into a binding arrangement whereby upon Mr. Client's death, his estate will sell and his daughter will purchase (with the life insurance proceeds she receives on Mr. Client's death) some or all of Mr. Client's stock in Family Co.  To ensure that this strategy has a fair result, the practitioner should pay particular attention to valuing Family Co. at both the commencement of the agreement and subsequent annual appraisals of the business.  It would not be consistent with Mr. Client's intent for his daughter to overpay or underpay for his stock.

8. Recapitalize the capital structure of Family Co. to separate voting control from equity ownership.

If Mr. Client is concerned about the potential overlap and conflict of having both an Investment Advisor (or Committee) and Trustee administer the Trust, the practitioner should consider a recapitalization of Family Co.'s capital structure to create two classes of stock – voting and non-voting.  The control of Family Co would be represented by the voting stock and could be held as a separate "voting" trust (the "business trust") of which Mr. Client's daughter would serve as sole Trustee.  The equity ownership of Family Co. would be represented by the non-voting stock and would be distributed equally among all of Mr. Client's children's trust shares.  The business trust would require all distributions from Family Co., including dividends and sale proceeds, to be immediately distributed to the children's trust shares.  Therefore, the sole asset owned by the business trust would be the voting stock in Family Co.  This proposed recapitalization of Family Co.'s stock would clearly put all matters relating to Family Co., including its retention, sale or liquidation, into Mr. Client's daughter's hands (with appropriate authorization language in the Trust).  In the event Family Co. was sold, the ownership of the business would cause distribution of the proceeds among the non-voting stockholders, i.e., the children's trust shares.

9. Create a disincentive to challenge Mr. Client's Trust by including an "in terrorem" clause in the trust instrument.

The practitioner may consider drafting an in terrorem (i.e., no-contest or forfeiture) clause, such as:

If any of the children or issue of the Settlor, or any other person by or on behalf of any children or issue of the Settlor shall contest the probate or validity of Settlor's Will or the validity of this Trust or any provisions herein, then all benefits and distributions provided for said child or such child's issue hereunder shall thereupon terminate and such benefits and distributions shall instead be allocated to the other beneficiaries of this Trust (other than the child whose benefits are terminated) as if the said child whose benefits are terminated had predeceased the Settlor leaving no surviving issue.

For this provision to work, Mr. Client has to leave the potentially contesting beneficiary a sufficient inheritance so the risk of losing such inheritance discourages him or her from contesting Mr. Client's estate plan.  Also, before proceeding, the practitioner should confirm whether the state in which Mr. Client is domiciled will enforce an in terrorem clause.43  Finally, although the advantage of an in terrorem clause is that it is a powerful and effective tool to discourage and penalize a beneficiary's challenge to Mr. Client's estate plan; that is also its disadvantage.  The practitioner should review with Mr. Client, and document the discussion, that, if the in terrorem clause works as intended, it will completely disinherit a child and his or her family.

10. Deliberately select the jurisdiction whose laws will govern and interpret the Trust based on Mr. Client's goals.

While the practitioner is not expected to be an expert in the laws of all fifty states, she should still determine if the laws governing Mr. Client's domicile are adequate to protect his expressed intent, or if another jurisdiction would be more appropriate.  Although it may be tempting to dodge the mandatory rules of the UTC by selecting a state in which the law has not been enacted, such avoidance may be short-lived.44  However, some states have enacted a version of the UTC that is more protective of the Settlor's intent than others.45  Furthermore, if a state that has enacted the UTC has any relationship to the Trust, the UTC may still apply.  Section 107 of the UTC provides:

The meaning and effect of the terms of a trust are determined by: (1) the law of the jurisdiction designated in the terms unless the designation of that jurisdiction's law is contrary to a strong public policy of the jurisdiction having the most significant relationship to the matter at issue; or (2) in the absence of a controlling designation in the terms of the trust, the law of the jurisdiction having the most significant relationship to the matter at issue.46

However, the Comment to Section 107 of the UTC provides some reassurance as to Mr. Client's ability to select the law governing his Trust regardless of the connections, if any, including its physical situs, with the selected jurisdiction or any other jurisdiction.47  Even if the practitioner finds the perfect jurisdiction to protect Mr. Client's expressed intent, in light of changes in local laws, the practitioner should include a provision in the trust instrument that will permit the Trustee to change the jurisdiction governing the administration and interpretation of the Trust. 

Conclusion

Although a parent's declaration, "because I said so," may have been all of the explanation a parent felt he needed to provide when his children were young, today, clients owning family businesses and their advisors need to provide a more detailed explanation of their intent regarding the future ownership and operation of the family enterprise.  Lack of clarity in memorializing the client's intent can lead to a confusing trust administration at best, and family disharmony and costly litigation at the worst.  However, even with proper clarity, careful attention must be given by the practitioner as to how case law, the Uniform Prudent Investor Act and the Uniform Trust Act may affect, by protecting or overriding, the written expression of the client's intent with possibly surprising and frustrating results for those clients who own and operate a family business.

About the Author:  Richard P. Breed, III is a founding shareholder of Tarlow, Breed, Hart & Rodgers, P.C., a law firm located in Boston, Massachusetts.  Attorney Breed concentrates in business succession planning for owners of privately-held enterprises.  In addition, Attorney Breed counsels high net worth families in the preservation and protection of their children's inheritances from excessive transfer taxes and from possible interference by third parties, including creditors and divorcing spouses. Attorney Breed also counsels fiduciaries and beneficiaries in matters of trust and estate administration, and has testified as an expert witness.


1 For their assistance on earlier drafts of this article, I thank my colleagues, Jennifer A. Civitella Hilario, Esq. and Matthew S. Furman, Esq.

2 In re Estate of Joseph Pulitzer, 249 N.Y.S. 87, 92 (Sur. Ct. 1931).

3 Id. at 93.

4 Id.

5 Id. at 95.

6 Restatement (Third) of Trusts § 66 cmt. 1 (1992).

7 Pulitzer, 249 N.Y.S. at 93.

8 Colonial Trust Co. v. Brown, 135 A. 555, 564 (Conn. 1926).

9 Donnelly v. Nat'l Bank of Washington, 179 P.2d 333, 336 (Wash. 1947).

10 Pulitzer, 249 N.Y.S. at 93.

11 Colonial Trust, 135 A. at 561, 564.

12 Id. at 563.

13 Id. at 564. 

14 Id.

15 Donnelly, 179 P.2d at 333.

16 Id. at 335.

17 Id. at 336.

18 Id.

19 John H. Langbein, The Uniform Prudent Investor Act and the Future of Trust Investing, 81 Iowa L. Rev. 641, 645-46 (1996).  Forty-four states and the District of Columbia have enacted a form of the Act since its completion in 1994.  See National Conference of Commissioners on Uniform State Laws, A Few Facts About The . . . Uniform Prudent Investor Act, http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-upria.asp.

20 Uniform Prudent Investor Act § 1 cmt. 1 (1995).

21 Uniform Prudent Investor Act § 3 (1995).

22 Uniform Prudent Investor Act § 3 cmt. (1995) (emphasis added).

23 In re Matter of Hyde, 44 A.D.3d 1195, 1200 (N.Y. App. Div. 2007).

24 A form of the UTC has been adopted in 22 states and the District of Columbia.  See National Conference of Commissioners on Uniform State Laws, A Few Facts About The . . . Uniform Trust Code, http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-utc2000.asp.

25 John H. Langbein, Mandatory Rules in the Law of Trusts, 98 NW. U. L. Rev. 1105, 1106 (2004).

26 Uniform Trust Code § 105(b) (2005).

27 Uniform Trust Code § 105(b)(3) (2005).

28 Uniform Trust Code § 105(b)(4) (2005).

29 Langbein, supra note 25, at 1112.

30 Pulitzer, 249 N.Y.S. at 94.

31 Langbein, supra note 25, at 1116-17.

32 See Jeffrey A. Cooper, Empty Promises: Settlor's Intent, the Uniform Trust Code, and the Future of Trust Investment Law, 88 B.U. L. Rev. 1165, 1177 (2008).

33 Uniform Trust Code § 105(b)(4) (2005).

34 Uniform Trust Code § 411(b) (2005).

35 Claflin v. Claflin, 20 N.E. 454, 455 (Mass. 1889)

36 Id.

37 Alan Newman, Elder Law: The Intention of the Settlor Under the Uniform Trust Code: Whose Property Is It, Anyway?, 38 Akron L. Rev. 649, 663 (2005).

38 Uniform Prudent Investor Act § 9(a) (1995).

39 Uniform Prudent Investor Act § 9(c) (1995).

40 Uniform Prudent Investor Act § 1 (1995).

41 Uniform Prudent Investor Act § 3 (1995).

42 Uniform Trust Code § 411(b) (2005).

43 See, e.g. Fla. Stat. ch. 732.517 (2010) (invalidating any provision in a Florida Will that penalizes any interested person from contesting a provision in a Will).

44 Cooper, supra note 32, at 1170.

45 See, e.g. Mich. Comp. Laws § 7404 (2010) (omitting "benefit of the Beneficiaries" in Michigan's enactment of Uniform Trust Code § 105(b)(3) (2005)). 

46 Uniform Trust Code § 107 (2005).

47 Uniform Trust Code § 107 cmt. (2005).

 

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