Who Has the Most Power in a Trust?
Are you nervous about setting up a Trust because you’re afraid you’ll lose power over your assets? Or maybe you already have established a Trust and you’re wondering who holds the most power. Have you been named a Trustee and wonder what powers you hold? Who has the most power in a Trust?
Today we are going to take a close look at Trusts and who the power holders are in a Trust.
Before we get to that, let’s get some basics out of the way.
What is a Trust?
A Trust is a document used in estate planning and wealth management that directs the use of assets owned by the trust maker, or grantor. This document is different from a Will in that it takes effect immediately— not just at the time of death— and it does not go through the probate process. Trusts are easy to set up and can be an extremely valuable tool in estate planning and beyond.
There are many different types of Trusts. All Trusts fall into two different categories. Revocable. Meaning the Trust Maker can revoke or change it at any time during their lifetime. And Irrevocable. Meaning the Trust cannot be changed after it is established.
There are important nuances to note about all Trusts. When a Trust is created, assets are assigned to the Trust. Meaning that they change ownership. Instead of being owned by you, the trust maker, the assets are now owned by the Trust and can be used per the guidelines of the Trust. This is done at the discretion of the Trustee.
So now that we have a good working knowledge of what a Trust is, let’s talk about the people named within the Trust and the powers they hold.
Trust Maker
The Trust Maker (aka Grantor or Settlor) is just that: the person making the Trust. They are transferring their assets into the Trust and defining how they are to be used or distributed. In a Revocable Trust, the Trust Maker often names themselves as the Trustee. Where in an Irrevocable Trust another person must be named as Trustee.
Trustee
The Trustee is named within the Trust as the person or entity that carries out the terms of the Trust. This person or entity ensures that the assets and property are used in the way that the Trust Maker directed.
As noted above, the initial Trustee may be the Trust Maker. Successor Trustees are named to replace the Grantor upon death.
Beneficiary
A beneficiary is named within the Trust as someone who will receive an asset from the Trust at some point. This person or entity may receive something as small as a token item or may inherit the entirety of the estate. You can name as many beneficiaries as you like.
So, who has the most power in a Trust?
Ultimately, the Trust Maker holds the most power initially because they are dictating how the Trust is to be administered. This is why you must be careful when establishing a Trust—especially an Irrevocable Trust. As we said above, once an Irrevocable Trust is established no changes can be made. So great care must be taken in establishing this Trust. Great care should also be taken when establishing a Revocable Trust, but until the death of the Trust Maker, there is an opportunity for changes to be made.
After the Trust is written and established, the Trustee holds the power to administer the Trust as it is written. The Trustee has to follow the rules written within the Trust. Some Trusts can be revoked or changed after they’ve been established. Others cannot and will stand forever after they’ve been executed. The Trustee holds the power to ensure that the articles of the Trust are followed.
As we mentioned above, in many Trusts the Trust Maker and the Trustee are one and the same. This means that the power does not shift until the death of the Trust Maker.
So, now you know that the Trust Maker holds the most power before the Trust is established, but the Trustee holds the most power after the Trust is established. And you also know that in many cases, during your lifetime you have both roles. So who has the most power in a trust? If you are creating it, YOU do.
The professionals at Siedentopf Law are here to help you with establishing a Trust and all of your estate planning needs. Call us or schedule a strategy session.
