Estate Plan Creation

Discretionary Trusts – How to Protect Your Beneficiaries From Bad Decisions and Outside Influences

Leaving your hard-earned assets outright to your children, grandchildren or other beneficiaries after you die will make their inheritance easy prey for creditors, predators, and divorcing spouses.  Instead, consider using discretionary trusts for the benefit of each of your beneficiaries.

What is a Discretionary Trust?

A discretionary trust is a type of irrevocable trust that is set up to protect the assets funded into the trust for the benefit of the trust’s beneficiary.  This can mean protection from the beneficiary’s poor money-management skills, extravagant spending habits, personal or professional judgment creditors, or divorcing spouse.

Under the terms of a typical discretionary trust, the trustee is limited in how much can be distributed to the beneficiary and when the distributions can be made.  You can make the terms and time frames as limited or as broad as you want.  For example, you can provide that distributions of income can only be made for health care needs after the beneficiary reaches the age of 21, or you can provide that distributions of income and principal can be made for health care needs and educational expenses at any age. 

An added bonus of incorporating discretionary trusts into your estate plan is that the trusts can be designed to minimize estate taxes as the trust assets pass down from your children to your grandchildren (this is referred to as “generation-skipping planning”).  In addition, you can dictate who will inherit what is left in each beneficiary’s trust when the beneficiary dies, which will allow you to keep the trust assets in the family.

While the distribution choices that can be included in a discretionary trust are virtually endless (within certain parameters established under bankruptcy and creditor protection laws), the bottom line is that a properly drafted discretionary trust will protect a beneficiary’s inheritance from creditors, predators, and divorcing spouses, avoid estate taxes when the beneficiary dies, and ultimately pass to the beneficiaries of your choice. 

Where Should You Include Discretionary Trusts in Your Estate Plan?

Discretionary trusts should be included in all of the trusts you have created that will ultimately be distributed to your heirs, including:

  • Your Revocable Living Trust

  • Your Irrevocable Life Insurance Trust

  • Your Standalone Retirement Trust

What Should You Do?

If you are concerned that your children, grandchildren, or other beneficiaries will not have the skills required to manage and invest their inheritance or will lose their inheritance in a lawsuit or divorce, then talk to your estate planning attorney about how to incorporate discretionary trusts into your estate plan.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller.


NPR is currently running an interesting series on financial basics for Baby Boomers. An NPR article published today (Article Link)  struck a chord with me because my office works to make the process of creating an estate plan as streamlined and friendly as possible. Of course, this can prove to be challenging at times, because many people do not realize that good estate planning is necessarily a collaborative process. That is, the Estates attorney must be able to determine the client's estate planning goals based upon information provided by the client. The attorney then uses this information to draft estate planning documents that best effectuate the client's objectives. However, many view the creation of an estate plan akin to having a CPA complete annual tax returns. In contrast, to create an estate plan the effectively meets your wishes your lawyer must understand more than your financial positions. 

Generally, this process includes the client filling out an intake sheet and then meeting with the Estates lawyer. Afterwards, a draft of the estate planning documents are drafted, which the client reviews. Finally, a signing ceremeony is scheduled—where the client executes the documents.

While this process does involves the client providing the attorney with information, the back and forth is imperative to the ultimate plans success. While one can choose to create his or her own or purchase a pre-made "estate plan", doing so will not distribute your assets and protect loved ones pursuant to your wishes. To create an estate plan that actually meets your goals and desires after you are no longer around, it is imperative to consult with an attorney who takes the time to know your overall objectives, family situation, and estate planning goals. While the process of creating and executing such a plan can seem work intensive—it is much easier and less expensive than failing to make any plan.

Because you have no say how your assets are distributed and your legacy is protected after you are gone—it is worth the time and effort to create an estate plan to ensure that your wishes are met.

If you are interested in ensuring that your family is cared for after you have passed away, please call our office at 415-625-0773 to schedule your free estate planning consultation with San Francisco’s premiere estate planning attorney, Matthew J. Tuller.