Being named the Trustee of a Trust is a massive responsibility, and it is a role you do not intend to take lightly. That is the good news. The bad news—well, not bad … just challenging … is that reading through all those Trust documents for the first time might be a bigger chore than you initially thought. This is especially true if you intend to do your own detailed review without anyone to guide you. After all, Trust documents are written in a specialized language.

Everything is written in English. That said, Trust docs often feel like you are reading a technical manual for a sophisticated piece of machinery—the kind of document you reread three times and still do not quite understand.

As a Trustee, you should want to understand exactly what is expected of you. Those instincts will serve you well in your new role. At the same time, what looks like plain English often carries technical meaning between the lines—and misinterpreting even one sentence or expectation can lead to delays, mistakes, or unnecessary stress.

This is why reviewing Trust documents with an estate planning attorney is so important.

This Is Not to Suggest You Can’t Do Your Own Review—Just Be Ready to Ask for Guidance!

Many new Trustees find it incredibly helpful to familiarize themselves with the Trust documents before meeting with an attorney. Doing so gives you a better sense of where your questions and concerns begin.

That said, approach your review with realistic expectations.

Trust documents are drafted to be legally precise, which means they often sacrifice readability for accuracy. For someone without legal training, that can quickly lead to frustration or second-guessing.

The next thing you know, you might find yourself procrastinating and not moving forward with your obligations as a Trustee. Even if you do not procrastinate, you may “hit a wall” and only partially understand what you are reading. No one wants that. The goal is to understand your obligations as Trustee well enough to move forward confidently—and to know when to bring in an attorney who can help untangle the language, explain how the provisions work together, and ensure you are carrying out your duties correctly.

What You Should Read First in the Trust

The major portions of the Living Trust that you should read first are: the “Successor Trustee” provisions; the “Trustee Powers;” and the “Distribution” provisions. When reviewing these sections of the Trust, you will want to pay special attention to the following types of items.

1. With respect to the Successor Trustee provisions, you will want to check whether there is to be a “Co-Trustee” acting with you, and you should note who the next Successor Trustee (after you) is. This way, you can contact him or her to “place them on deck” if they are needed in the future.
2. You will also want to note whether there are any special provisions, such as restrictions on investing and selling Trust assets, and the right to permit beneficiaries to live on Trust property.
3. You should also note whether there are any “Special Co-Trustee,” “Administrative Trustee,” or “Trust Protector” provisions, as these may impact you while serving as Trustee.

With respect to the “Distribution” provisions, you will want to note the following: whether there are any specific distributions of particular assets to particular people (or to their shares of the Trust); any restrictions on the use and/or sale of assets (such as a beneficiary’s right to reside on a particular property or right of first refusal to purchase a particular property); and most importantly, to whom, when, and how distributions are to be made from the Trust (including any powers of appointment given to beneficiaries, that may allow them to change the original terms).

Obviously, there is much more detail to be reviewed in the Trust and Will, and you should do so with the assistance of an attorney.

Notes for Your First Attorney Meeting

When you have your initial meeting with the attorney, be sure to bring all of the legal documents we instructed you to find. While the Living Trust may represent the “engine” of the estate plan “vehicle,” the other documents may represent the “transmission,” “wheels,” “brakes,” etc., that support and to an extent interrelate and interact with the Living Trust.  By bringing as many of these documents as you can find to the initial attorney meeting, he or she will be able to give you a more accurate overview of how the estate plan will work.

After the attorney reviews the various estate plan documents, he or she may note issues that may exist because of particular unclear or wrong drafting language, changes in the law, and/or changes in the circumstances of the beneficiaries. If the Trust or other documents require further clarification, reformation, or modification, this may be accomplished through a Family Settlement Agreement between the Trustee and the beneficiaries, or through an order of the Probate Court.

While your attorney helps you interpret the language in the Trust documents, be mindful of these rules:

• Specific intent controls over general intent.
• The entire document should be construed in such a way that it is consistent from beginning to end. If the interpretation of particular language would cause a conflict with another part of the document, choose a consistent interpretation, if such an interpretation is possible.
• If two expressions of specific intent appear to conflict, select the one that appears to be most consistent with the general intent.
• “May” is permissive and allows discretion.
• “Shall” is mandatory and does not allow discretion.
• “Consider” means what is appropriate, not something that is required. For example, “consider other resources before making distributions” means that in finding other assets, the availability of those other assets might mean a distribution does not have to be made. This is one place where you can “add to” or “subtract from” the actual language of the document.
• “Support” and “maintenance” are synonymous and mean making contributions of money or services necessary for the maintenance of a person. This can mean the cost of living, food, clothing, shelter, medical care, etc. Some Trusts do not use both terms because Medicaid eligibility can be lost if the Trust uses the term support.
• “Standard of living” means the person’s standard of living at the time of the Trustor’s death, or at the time the document was drafted, not what you think his or her standard of living should be.
• A “support Trust” often requires distributions to a beneficiary. Always interpret this clause to require distributions if there is a question, even if you think that the distribution is unwise. The beneficiary of a support trust can bring an action to compel a distribution. A true support Trust directs the Trustee to pay or apply only so much of the income and principal as is necessary for the education or support of the beneficiary. 
• A “discretionary Trust” means that the Trustee has the discretion to make distributions without any ascertainable standard. A true discretionary Trust provides that the Trustee shall pay to or apply for the benefit of a beneficiary only so much of the Trust income and principal as the Trustee in his uncontrolled discretion sees fit to pay or apply.  Discretion must be reasonably exercised.

Final Thoughts

Serving as a Trustee is a serious role, and reviewing Trust documents on your own can be a helpful first step. But legalese often hides complexity beneath familiar words—and misunderstanding that language can have real consequences.

An experienced attorney can help untangle that language, explain your responsibilities, and help you move forward with clarity and confidence. Please do not take this guidance for granted. It is there for a reason.

Call Leigh Hilton PLLC Today!!

Having a competent attorney in your corner will help you and your family navigate the often overwhelming waters of protecting everything you own and everyone you love. That is our job, and we think we do it better than anyone else. Call Leigh Hilton PLLC so we can help ensure you and your family are taken care of in the best possible way.

Leigh Hilton PLLC wants to be your first call every time for any estate planning need. We look forward to serving you.