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  • Betsey Rubel

Creativity and Estate Planning

Creativity: The tendency to generate or recognize ideas, alternatives, or possibilities that may be useful in solving problems, communicating with others. Human Motivation, 3rd ed., by Robert E. Franken When you think of the legal profession, creativity is probably not the first thing that comes to mind. But as in nearly all professions, creativity can play an important role when it comes to serving your clients as an estate planning attorney. Estate planning does not have to be a cookie-cutter process. I strongly believe that creativity is an important but often overlooked element of an estate plan; especially when it comes to trust drafting. The beautiful thing about a trust is that it gives you the opportunity to create a document that reflects your own unique values and specific wishes you have for your family. My job as an estate planning attorney is to get to know and understand my client, their values and what they wish to convey to their loved ones. While products such as ethical wills and legacy letters are great tools used to convey your values to your family, there are also concrete ways to incorporate your unique values into your trust document by carefully drafting distribution provisions that reward or encourage certain behaviors or recognize important life events. Some examples of provisions I have included in trusts:

  1. Travel allowances to specific destinations. Often times such a provision is drafted with the intent of allowing the trust beneficiary to experience the heritage and homeland of the beneficiary’s parent or grandparent.

  2. Work Incentives. A work incentive provision can be used to encourage a trust beneficiary to maintain employment and not rely solely on a family inheritance. A common way of implementing this desire would be through a provision that directed the trustee to match the amount of the beneficiary’s paycheck.

  3. College graduation incentives. I place language in nearly every trust that provides some distribution upon college graduation or age twenty-five, whichever comes first, providing an incentive for the beneficiary to graduate from college and thus receive an early distribution of funds.

  4. Language promoting certain financial values. Many clients I work with have a strong desire to promote a debt-free and financially responsible lifestyle. I recently drafted a trust that required the beneficiary to complete a course at Dave Ramsey’s Financial Peace University prior to receiving a distribution from the trust.

  5. Drug/Alcohol addiction provisions. Sadly, some clients are faced with a situation where a beneficiary is dealing with an addiction issue. In this situation, language can be added to a trust that requires the beneficiary to be drug tested at certain intervals in order to receive a trust distribution.

There are of course many other possible provisions to include in your trust agreement. Talk with your attorney and don’t be afraid to share your ideas about what you might want to include in your trust document. With a little creativity, your trust can be a reflection of your values and an important part of your family legacy. DRAFTING TIP FOR THE ESTATE PLANNING ATTORNEY: When using incentive provisions such as the examples above, be sure to include an appropriate amount of flexibility into the language to account for an unforeseen chance in circumstances and to avoid unintended consequences that penalize a beneficiary for not meeting a condition for distribution due to circumstances out of their control.

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