Essential Functions of Being a Trust Protector

  • A Trust protector is an independent third party, who does not benefit from changes they make to the Trust. They may be an individual, such as a trusted family member or friend; or they can be a corporate fiduciary. 
  • Trust Protectors differ from Trustees of a Revocable Living Trust and Executors of a Will. A Trust Protector may or may not serve in a fiduciary capacity and is not involved in the day to day administration. Trust Protectors typically serve in a non fiduciary capacity, but must act in good faith. 
  • A Trust Protector serves as the watchful eye over a trust, and holds power not typically held by a Trustee. Trust Protectors provide oversight regarding decisions and actions made by the Trustee(s) and they also have a certain degree of flexibility. The Trust Protector’s responsibilities and authority are outlined in the Trust. 
  • The function of the Trust Protector is to address any profound issues that arise between Trustees, direct the Trustee in matters concerning the trust, protect the beneficiary’s interests and to assist in achieving the objectives of the Trustmakers’ estate plan. A Trust Protector is there to mentor and provide advice to the Trustees and to serve as referee as necessary. 
  • A Trust Protector usually serves after the death of one or both Trustmaker’s. In many cases, they may also act during a period of incapacity. 
  • The Trustmakers have the ability to remove the Trust Protector for any reason, and appoint a new Trust Protector. 
  • Except for when the Trustmakers are Trustees. a Trust Protector usually has the authority to remove any Trustee. This is the hammer and the ultimate tool the Trust Protector has to control the actions of the Trustee(s). 
  • Trust Protector’s may amend provisions of a trust in certain instances such as to: 
    • alter the administrative and investment powers of our Trustee;
    • reflect tax or other legal changes that affect trust administration. This includes dividing trust property into separate shares or funds;
    • correct ambiguities, including scrivener errors, that might otherwise require court construction or reformation; and
    • Trust Protector’s may not amend the distribution terms set forth by the Trust makers when they created their trust. 

Should you have any questions or would like to learn more, please feel free to consult with one of our attorneys at McDowall Cotter by giving us a call at 650-572-7933. The accomplished attorneys of McDowall Cotter work in civil litigation, business services, and estate planning and are located in San Mateo. Our experienced and knowledgeable staff will be able to help you with any of your needs or concerns. Additionally, you can find McDowall Cotter on Facebook, Instagram, Twitter and LinkedIn @ McDowallCotter. 

– Written by Karishma Patel, Esq.