15 August 2018

Use A ‘Purpose’ Trust For Your Legacy Plan

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Your legacy differs from your estate in that it represents more than the things you own—it embodies your purpose. At the end of your life, your legacy will be the imprint you leave on this earth, the meaning your life leaves behind. What better vehicle to protect, preserve and continue to celebrate your legacy than the aptly named “purpose” trust?

A purpose trust is exactly what it sounds like—a trust that exists to carry out a purpose, as opposed to a trust that exists for the benefit of individual beneficiaries. Originating in offshore (non-U.S.) jurisdictions, several U.S. states now have laws permitting purpose trusts. The defining characteristic is to make sure your trust exists for a “valid” purpose. While there is little U.S. case law on the subject of purpose trusts, the ownership of a business has been affirmed as a valid purpose for which this type of trust can exist. Therefore, a purpose trust can be established to hold the shares of a family business or enterprise.

Three common goals of legacy planning are: (1) perpetual existence, (2) separating the principal of your legacy assets from the revenue those assets generate, and (2) separating the management and control of your legacy assets from who benefits economically. A purpose trust can swiftly accomplish all three.

First, many states – including Delaware, South Dakota, Nevada and Wyoming – now permit “perpetual” trusts (i.e., trusts that can last forever) or trusts that can exist for an extraordinarily long period of time, such as 1,000 years.  Separating the principal of your legacy assets from the revenue those assets generate and separating the management and control of your legacy assets from those who benefit economically can be achieved in one fell swoop by setting up a multi-tiered trust structure. While your purpose trust can own your legacy assets through a corporate entity (let’s call it “Legacy Co.”), your legacy trust can provide that all of the income received from Legacy Co. be paid to one ore more traditional family dynasty trusts, of which your family can be beneficiaries. This will allow your family or other beneficiaries to benefit economically from your legacy assets without necessarily involving them in the management and control of those assets. Furthermore, by creating a separate vertical for the management and control of your legacy assets, you enable yourself to be intentional with the succession of that management and control and to integrate family members or outside advisors who are best qualified to oversee your legacy.

In a traditional dynasty trust structure, there is the problem of an ever-increasing pool of potential beneficiaries. Even if you build in the maximum protections for the Trustees and give the Trustees complete discretion with regard to how and when (if at all) to make distributions to beneficiaries, the Trustees of the traditional dynasty trust still have fiduciaries duties to those beneficiaries. As a result, the beneficiaries have legal standing to bring a lawsuit against the Trustees, which can put pressure on the Trustees or frustrate the system, potentially thwarting your legacy plan. With a “purpose” trust, there are no beneficiaries to whom the Trustees owe a fiduciary duty or who have legal standing to bring a claim against the Trustees for any reason. Instead, when you create a purpose trust you appoint someone (often called a “protector” or “enforcer”) with the responsibility of ensuring the purpose(s) of the trust are being fulfilled. The result is that your Trustees are free to focus on carrying out your legacy plan as you intended.

Click here for the original article from Forbes.  

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