Dear Michael:

Reading your last article, you stated a commercial trustee may be a better option for handling our land and mineral assets than having one of our children handle it. Why do you feel this way? – Trust My Family

Dear Trust My Family:

I understand how many people feel about their families. But families are not a static unit as time goes by. People are added and subtracted – due to births, deaths, divorces, etc.

If you have an asset of considerable value that you believe should be held onto – whether that's land, or minerals, or the right to income from either – regardless of any circumstances in the future – that the long-term value of the income will always offset any purchase price offered – then you need to lock it up somewhere where human emotion is taken out of the equation – this would be an irrevocable trust with a commercial trustee.  

Or, if you feel the value of the accumulated income or asset value may sometime put the person in charge of these funds or asset value may place them in a compromising situation in the future, then use someone who follows your instructions to the letter as to what you want to see happen.

For example, many people have mineral trusts and these trusts merely hold the mineral and all of the income is disbursed from this trust. This protects the mineral value from inclusion for estate taxes upon your death (less any Unified Credit lost for gifting to the trust originally). It also provides a vessel to accumulate and distribute these funds.

As long as you are alive, there is oversight and there is accountability in these trusts – in most cases. The rare case where this wouldn't be is if you experience some type of dementia or physical disability that limits you from being able to care whether or not there is oversight and accountability.

However, again, upon your death, the biggest complaint I hear from beneficiaries of trusts is, "I don't know what's happening with the trust. My (brother – sister) runs the trust and just sends checks out. I don't know what's coming in and I don't know what's going out and I don't know if everything is as it should be. I ask and ask, but they refuse to send out any information".

Again, if you mandate that each beneficiary of your trust is to receive an (annual, quarterly, monthly) statement from your commercial trust, they will receive their statements – including any and all information you decide they disclose.

This not only happens with the current beneficiaries, it happens with all subsequent beneficiaries. Your commercial trust is run by bank appointed trustees. If the trustee becomes injured, or retires, or dies, they have another person to step up and do the job you entrusted them to do – because they are bound by law to follow those instructions.

What happens if they don't follow these instructions?

For a personal trustee, beneficiaries are left to sue the trustee (their brother, sister, etc.) and hold them personally responsible for any losses to the trust. I've run across many situations where beneficiaries have come to me to see how they can recoup losses incurred by their sibling and when I tell them they'll have to personally sue them, best case scenario, or bring in the officials and they could be arrested and charged, many beneficiaries don't see this as a win situation.

Most people tell me, "Well, the reason they mismanaged or took part of the money is they had money problems themselves. If I went after them in court, it'd be like getting blood out of a turnip. Why put him or her in jail over this when I'll never see a dime?"

In the case of a commercial trustee, if the assets are mismanaged or mishandled, the bank is bonded against such occurrences and, yes, they will have the deep pockets between the bonding and their own net value to make up any losses. Hence the reason for the major oversight by the bank itself over it's own trust department.

If you feel the assets will go to your children upon your death, then maybe the personal trustee is the way to go. If you want the asset and/or the income thereof to go on for two or more generations, then perhaps a hard look at commercial trusts is the way to go. For those people who say 'When I'm dead, it doesn't really matter' then maybe you don't need a trust at all.