Posts Tagged Wealth Advisors Trust Company
Get Ready for the Winners List “America’s Most Advisor-Friendly Trust Companies” Special Report on February 6
Posted by Scott Martin in Headlines on January 8, 2012
With over 1,700 trust providers to choose from, we’ve spotted only a handful rolling out the red carpet for financial advisors and broker dealer representatives.
As 2012 begins, every advisor in the business is already hunting the competitive edge they need to stand out from the crowd and capture new assets.
Many acknowledge that it’s no longer enough to offer prospects a traditional investment management and financial planning approach. There has to be an angle, a differentiating factor.
With $41 trillion at stake as the baby boomers retire and start pondering their legacies, that angle increasingly involves estate planning. And modern estate planning means being able to support trusts.
Unfortunately, most trust companies only want advisors’ business so they can get control of the underlying assets. These vendors aren’t really partners. They’re just competitors, wealth managers in trust officer clothing.
So how do advisors find a partner they can trust? That’s what we set out to discover.
Featuring the Winners List
Our next report on directed and delegated trust providers will zero in on who in the trust industry is catering to registered investment advisors (RIAs), family offices and broker-dealer representatives.
There are a few obvious choices in the form of trust companies owned by advisors or dedicated exclusively to their business: Wealth Advisors Trust Company, Advisory Trust, Provident Trust, National Advisors Trust Company, Alaska Trust, Summit Trust and a few others.
But due diligence is the name of the game here. Advisors need to weigh all the options they can before picking a trust partner, much less diverting their clients’ assets to someone else’s custody.
With that thought in mind, the Trust Advisor has been tracking advisor-friendly trust companies for years now. The 2012 list will be available on a complimentary basis for download beginning in our February 6 issue.
As in previous years, we’ll rank the technologies used for each of the trust providers, reveal custody arrangements and compare fees side by side so you can be sure you’re getting the value your clients deserve.
Anecdotal commentary and extensive interviews will give you a sense of the types of trust each company can handle and the level of customer service it provides.
As Christopher Holtby, head of South Dakota-based Wealth Advisors Trust Company, told us last year, advisors and clients alike still don’t understand how trusts work.
This year, we’re also looking at how well these firms educate their partners and potential partners. Can they explain to advisors how to cultivate trust relationships and build their own businesses, or are they simply waiting to absorb whatever assets the advisors send over?
Let’s make 2012 the year of the win-win scenario. You will be able to receive your complimentary download. Just check our February 6 issue.
If your trust company would like to be included or to advertise in this special report, simply click here
http://thetrustadvisor.com/headlines/advisor-friendly
Scott Martin, Senior Editor, The Trust Advisor
Deportation Trusts Become Hot Commodity with Rich Undocumented Immigrants
Posted by Scott Martin in News on November 28, 2010
As the quest to deport illegal aliens looms, wealthy immigrants with questionable status wait and worry about their dependents’ financial well-being. Some immigration attorneys and estate planners have engineered a cottage business creating trusts that protect assets in the event they are deported. But trust firms are cautious.
Practically speaking, the country’s 11 million undocumented immigrants have always been in a precarious legal position. But with federal and state authorities cracking down, the threat of sudden detainment or deportation is more real than ever.
In the face of that threat, wealthy foreign nationals are reaching out to estate planners to insulate their families and shield their property.
A simple power of attorney will do the trick in some situations, but others may require a full-fledged trust. That’s where things can get complicated, says Chuck Sharpe, a Dallas estate planner and co-founder of Wealth Advisors Trust.
To open a trust or bank account, a resident alien needs to register with the IRS to get an international taxpayer identification number (ITIN).
While many undocumented immigrants studiously avoid any contact with the federal government, plenty — 3.8 million of them — have ITINs and are paying taxes.
If members of this group can scrape up enough proof of identity to satisfy the trust company and if nothing in their background raises a red flag, the process of creating a trust can be relatively simple, Sharpe says.
“I don’t know of any requirements requiring you to be a U.S. citizen — or a citizen of a particular state, for that matter — to set up a trust,” he explains.
“The only special issue on that front is that you use the ITIN number in place of a Social Security number,” he adds.
Meet the deportation trust
The arrangements that estate planners are coming up with — call them “deportation trusts” if you like — need to work like a conventional asset protection trust, while building in a lot of the features of a will or estate plan.
Once the trust is in place, it works like a conventional asset protection trust. The settlor can use the assets as long as he or she is in the United States, and if a deportation order is ever served, the asset protection kicks in to make it harder for the authorities to freeze or confiscate wealth granted to the trust.
Meanwhile, the “estate plan” side provides instructions for winding down life in the United States in an orderly fashion: appointing guardians for children left behind, liquidating non-trust assets and paying debts.
“The one thing you probably want is to make sure you’re creating the trust in a jurisdiction that allows for self-settled trusts,” Sharpe says.
In the Southwest, that means your options boil down to the domestic asset protection states: Nevada or South Dakota as a first choice, followed by Utah or Colorado, whose statutes either make a lot of exceptions or are too vaguely worded for many lawyers’ comfort.
Since neither Arizona nor California — hotbeds of anti-immigration rhetoric — support self-settled trusts, wealthy aliens in these states would probably be better served by situating their assets elsewhere.
Pinning down the details
Naturally, the normal asset protection statute of limitations is in force. A Nevada deportation trust, for example, would need to hold the assets for at least two years before providing any benefit.
Because the deportation process rarely gives people longer than one year to wind down their U.S. affairs, it’s going to be too late to get the trust process moving if someone is already on Immigration’s radar.
This makes advance planning critical. And since the people with the assets to take advantage of these arrangements tend to also have top-notch advice, many started laying the groundwork back in 2006 when Arizona first got tough on undocumented nationals within its borders.
“Anybody thinking of doing it probably has some wealth,” Sharpe says. “And with that kind of wealth, they were probably already thinking of broader estate planning needs.”
In those cases, amending the existing paperwork to cover the possibility of forcible ejection from the country — and add asset protection, where needed — may be enough, estate planners say.
At that point, the real questions revolve around beneficiary and trustee choice and the tax ramifications of any grant or gift of property. Gift tax considerations, for example, may apply whether the beneficiaries are foreign nationals or U.S. citizens.
As for fees, Sharpe says that a deportation trust should be roughly as expensive to administer as a more traditional asset protection trust. Added costs may arise if there are a lot of foreign beneficiaries or other research-intensive details complicate the situation.
No ITIN, no trust?
But if no taxpayer ID or tax record exists, even routine trust company due diligence could raise a red flag and make an already precarious situation worse.
“If you are in this position and use a third-party trustee, you are definitely opening yourself up to additional government scrutiny,” Sharpe says.
ITIN or no ITIN, some trust companies may want to see more documentation than these people can provide.
“It’s a mixed bag” for those who can’t come up with the paperwork, says Les Revzon, who handles due diligence for Nevada’s Summit Trust. At a minimum, he says, trust companies want to see a valid driver’s license or government ID, plus a credit card and a utility bill as proof of address.
For truly undocumented immigrants, granting power of attorney to a U.S. citizen and designating a temporary guardian for any children should go a long way toward ensuring that a sudden shift in the enforcement environment doesn’t wreck their lives completely.
Stipulations in the power of attorney can act like a “living will,” spelling out exactly what should be done with assets left behind in the event that the signer is detained or deported.
Without granting clear authority, it can be tough to sell cars, real estate or businesses in order to send the cash back or free it up for family members who remain here.
Scott Martin, contributing editor, The Trust Advisor Blog. Steven Maimes contributed to the research and reporting.
Permalink: http://thetrustadvisor.com/news/ins
TD and Fidelity Win Top Honor as Advisors’ Most Trust-Friendly RIA Custodians
Posted by Scott Martin in News on October 9, 2010
Looking for an RIA custodian that supports trust accounts? Our survey reveals that Fidelity and TD Ameritrade in particular have come a long way to provide a flexible trust platform that really helps advisors.
A decade ago, all an advisor had to do was provide financial planning and wealthy clients unhappy with wirehouse service would come rolling in. But value is the key word in today’s custody vendor consideration.
Trust services have become a key differentiating factor, and all four of the major custodians — TD Ameritrade, Fidelity, Pershing and Schwab — now provide plenty of institutional support to their affiliates who want to incorporate trust in their business.
“We know that this is an important need for advisors,” says Matt Judge, head of TDA’s wealth management solutions group, adding that “the high-net-worth clients are definitely looking for this and going to advisors who can provide it.”
In fact, Judge estimates that 20% of the assets on the $100 billion TDA custody platform, or about $20 billion, is in now in “some kind of trust account.”
Based on conversations with other custodians, that’s probably the leading edge of the industry. For example, Fidelity, with $300 billion on its RIA books, only reports about $6.6 billion in advisor trust assets.
But the real story is how fast the numbers are growing as advisors wake up to the possibility that they can now put their hard-won clients’ money into a trust without losing the account to a traditional bank trust department.
At Fidelity, trust assets doubled over the last 15 months, says spokesman Steve Austin.
With all four of the big custodians actively competing with each other to offer the best trust platform, strategies vary. This year, TDA wins the trust-friendly prize because its trust support can match any of its competitors, even though we ranked it so low last year.
Fidelity is close behind with the most extensive “a la carte” approach, while previously top-ranked Pershing and Schwab — each of which still offer high-quality trust hosting service — slip down the list primarily because they have not been innovating as aggressively.
|
Trust Friendly RIA Custodians |
||||||||
|
Custodian |
Trust Provider |
Architecture |
Marketing Support |
GST Exempt Trusts |
Asset Protection Trusts |
Directed Trusts |
State Tax |
Score |
|
Trust Network |
Open |
Yes |
Yes |
Yes |
Yes |
No |
6 |
|
|
Varies |
Open |
Yes |
Yes |
Yes |
Yes |
No |
6 |
|
|
Trust Network |
Open |
Limited |
Yes |
Yes |
Yes |
No |
5 |
|
|
Charles Schwab Bank |
Closed |
No |
Yes |
Yes |
Yes |
No |
4 |
|
|
Source: Internal Research. ©2010 TheTrustAdvisor.com |
||||||||
TD AMERITRADE
Although TDA built out its in-house trust operation two years ago through its $225 million acquisition of Fiserv, that business — now rolled into the Maine-based TD Ameritrade Trust Company — primarily caters to retirement plans.
Since retirement accounts operate on a tax-deferred basis, Maine’s state income tax is not a downside factor here. And at this end of the trust business, the ability to offer asset protection, dynastic trust or other sophisticated vehicles that are not available in Maine is irrelevant as well.
For affiliated RIAs, TDA refers trust business to various directed trust service providers, including Advisory Trust Company and Wealth Advisors Trust. Based in Delaware and South Dakota, respectively, they can support all major trust types and do not subject clients to state income tax.
TDA is talking to a few additional trust companies to join its network and add to the menu of options that affiliates can choose from. They promised us an announcement could come soon.
However, if an advisor has a favored trust company outside the network, TDA will accommodate the accounts and any assets in them, Matt Judge says.
“It’s a truly open architecture,” he explains. “While we have partners to refer an advisor to, we can work with anyone that you want to work with.”
In theory, these third-party trustees could even be traditional bank trust departments or outside wealth managers, but Judge recognizes that advisors usually view these trust providers as potential competitors.
“Our partners focus only on the RIA market and don’t compete on advice,” he says. “Advisors retain the responsibility of managing these assets.”
TDA provides extensive marketing and educational support — including a monthly webinar and breakout conference sessions — for advisors looking to either add trust to their business or beef up their existing trust activities.
FIDELITY
Fidelity takes a segmented approach, giving affiliated advisors a tiered menu of ways they can structure their trust relationships.
At the most simple, Fidelity is happy to wrap trust assets into an RIA’s main brokerage statement and let the advisor act as trustee. This option is becoming a lot less popular after Rule 206 clamped down on the practice, but Deborah Gaff, the head of Fidelity’s trust services unit, tells me she still sees it from time to time.
Next up the pyramid, the company will act as agent for an advisor who is somewhat comfortable as trustee but still needs a little help running the disbursements and other transactions. At this level, each advisor effectively gets a dedicated trust officer to backstop the accounts.
For those who want to totally divorce themselves from the trustee role, Delaware-based captive Fidelity Personal Trust Company will take over as corporate trustee. All accounts are directed — the advisor is clearly spelled out as the investment manager of record.
Fidelity Personal Trust supports all major types of trust except special needs trusts, in which the firm prefers to act as an agent for a family member, Gaff says.
Finally, Fidelity will refer advisors to its own growing network of independent trust companies, which include First American Trust, Colonial Trust, Santa Fe Trust, and others.
In any event, the company has ramped up its marketing support for affiliates who want to offer trust to their clients and prospects.
PERSHING
The smallest of the four major custodians, Pershing still shines by pioneering the “trust network” or open architecture approach to trust services.
Like TDA, the company has no true in-house trust company that faces the advisory channel. Instead, affiliates are referred to various directed trust vendors: Advisory Trust, Reliance Trust, Santa Fe Trust and Wilmington.
Between them, they provide all major trust types and will serve a wide variety of accounts.
While the network remains great, Pershing slips down the list this year simply because its competitors have adopted many of its best features.
At this point, open architecture is no longer a differentiator but a de facto industry standard, and we look forward to seeing how the company innovates next year.
SCHWAB
Although Schwab is by far the biggest RIA custodian with 5,500 affiliates and $600 billion on its platform, it is also the only one that has maintained a closed shop where trust assets are concerned.
Rather than give affiliates a choice, the default option is to run trust options through Delaware-based Charles Schwab Bank. (Charles Schwab Trust Company is also available to handle retirement plan accounts.)
Alternative assets remain a sore spot for many Schwab advisors and a potential loophole in this system.
Theoretically, Charles Schwab Bank can handle real estate, limited partnerships and other non-traditional assets that have become popular in personal trust accounts. However, the company’s recent back-and-forth policy on whether it would support these assets on its brokerage platform has shaken RIA confidence in how well they will be able to integrate these trust assets into their overall book of business.
To avoid the angst, advisors may look into setting up trust accounts through Millennium Trust instead. Schwab picked Millennium to provide custody of alternatives “orphaned” by its initial decision to dump these assets, and the platform should still mesh well with Schwab’s system.
Scott Martin, contributing editor, The Trust Advisor Blog. Steven Maimes contributed to the research and reporting.
Trust Firm Pulls in $70 Million with “Directed Trusts Made Simple” Campaign
Posted by Jerry Cooper in News, Sales and Marketing on October 7, 2010
In less than 30 days, Wealth Advisors Trust’s new email marketing program has produced millions in new advisor referred accounts. The firm’s business development team says “the phones have been ringing off the hook.”
South Dakota-based Wealth Advisors Trust Company low-risk strategy has paid off in a big way by paving the way to become the new home for $70 million and counting in directed trust account relationships.
The firm’s co-founder Matt Paladidi told us, “We are flooded with new solid leads.”
He expects to see $90 to $100 million or more on their books before the end of the year. All of this became possible by publishing a special report, “Directed Trusts Made Simple,” exclusively distributed by email.
The complimentary report tells advisors everything they need to know about marketing directed trust arrangements. It explains how these vehicles work and why they reduce friction between advisors and traditional trust companies.
Wealth Advisors Trust retained Mass. based Financial Marketing Associates to help produce the report and launch the email marketing campaign to estate planners and advisors.
“Directed Trusts is the first in a series to come,” says Paladini.
The report offers an overview of how traditional trust accounts work and how directed trusts are different, authors Christopher Holtby and Chuck Sharpe (now the president of Wealth Advisors Trust) focus most of the discussion on the nuts and bolts of bringing trust services into an investment-based practice.
Holtby and Sharpe have good, actionable advice on everything from how to pick a trust company for your client to how to integrate trust into your prospecting activities.
While they probably wouldn’t mind if readers used Wealth Advisors Trust exclusively, they recognize that there are a lot of directed trust companies out there and that the important thing is finding the right client-trustee-advisor fit.
In fact, some of the best advice in the white paper is on how to interview prospective trust companies to make sure an individual client gets the best possible service.
No need to compete with advisors
Directed trusts formally split the duties of running the trust from the responsibility for managing the assets in it.
The trustee handles the complex paperwork and earns an administration fee. The investment manager — usually the advisor who suggested that a client open the trust in the first place — keeps control of the investment account.
Because the advisor isn’t losing the assets, this arrangement eliminates a lot of the internal conflict that putting client assets into trust used to entail.
On the one hand, wealthy clients can reap big benefits from shielding their money from estate and income tax or from creditors.
But on the other side of the coin, advisors were understandably reluctant to refer their best accounts to full-service trust companies that have built up aggressive in-house wealth management teams of their own.
However, directed trust companies like Wealth Advisors Trust are happy to handle the trust side of the business and leave the investing to the specialists. In fact, very few even have the ability to manage the investment side even if they wanted to do so.
To receive a copy of the report, click link below: http://www.thetrustadvisor.com/email/scripts/watc_sr_requests_subscribe.html
Jerry Cooper, senior editor, The Trust Advisor Blog.
Permalink: http://thetrustadvisor.com/news/watc-success
Trust Firm Launches “Directed Trusts Made Simple” Campaign
Posted by Scott Martin in News on September 11, 2010
Wealth Advisors Trust Company gives advisors a crash course in how to provide a full range of trust services without losing their best clients to the competition.
In the past, trust companies and independent investment advisors have had an uneasy relationship at best. But now, with about $41 trillion at stake as the Baby Boom retires, the stakes have never been higher — and directed trusts are emerging as a way to let everyone win.
South Dakota-based Wealth Advisors Trust Company is one of a new generation of independent trust companies that cater exclusively to the investment advisors themselves.
But as the firm’s co-founder Christopher Holtby told us, “We are finding that advisors and clients alike simply don’t understand how trusts work.”
He added, “In order for us to do our job right, we need to make sure that our client’s and the advisors we work with understand the basics of how trusts work.”
Wealth Advisors published a new special report, “Directed Trusts Made Simple,” that tells advisors everything they need to know about how these vehicles work and why they reduce friction between advisors and traditional trust companies.
You can receive a complimentary copy here, click here.
Wealth Advisors Trust retained Mass. based, Financial Marketing Associates to help produce the report and launch an email marketing campaign to estate planners and advisors. “Directed Trusts is the first in a series to come,” Holtby promises.
After an overview of how traditional trust accounts work and how directed trusts are different, authors Christopher Holtby and Chuck Sharpe (now the president of Wealth Advisors Trust) focus most of the discussion on the nuts and bolts of bringing trust services into an investment-based practice.
Holtby and Sharpe have good, actionable advice on everything from how to pick a trust company for your client to how to integrate trust into your prospecting activities.
While they probably wouldn’t mind if readers used Wealth Advisors Trust exclusively, they recognize that there are a lot of directed trust companies out there and that the important thing is finding the right client-trustee-advisor fit.
In fact, some of the best advice in the white paper is on how to interview prospective trust companies to make sure an individual client gets the best possible service.
No need to compete with advisors
Directed trusts formally split the duties of running the trust from the responsibility for managing the assets in it.
The trustee handles the complex paperwork and earns an administration fee. The investment manager — usually the advisor who suggested that a client open the trust in the first place — keeps control of the investment account.
Because the advisor isn’t losing the assets, this arrangement eliminates a lot of the internal conflict that putting client assets into trust used to entail.
On the one hand, wealthy clients can reap big benefits from shielding their money from estate and income tax or from creditors.
But on the other side of the coin, advisors were understandably reluctant to refer their best accounts to full-service trust companies that have built up aggressive in-house wealth management teams of their own.
However, directed trust companies like Wealth Advisors Trust are happy to handle the trust side of the business and leave the investing to the specialists. In fact, very few even have the ability to manage the investment side even if they wanted to do so.
Scott Martin, contributing editor, The Trust Advisor Blog.
To receive a copy of the report, click link below: http://www.thetrustadvisor.com/email/scripts/watc_sr_requests_subscribe.html
Permalink: http://thetrustadvisor.com/news/watc
New SEC Custody Rule Boon for Directed Trust Providers
Posted by Jerry Cooper in News on March 19, 2010
Audit and compliance fees are sending RIA trustees to independent trust companies. Providers welcome the new business.
A new SEC rule that took effect last Friday leaves thousands of RIAs facing annual surprise audits and has triggered a surge of new business for trust companies that specialize in lightening the load.
The audits are part of a package of new rules adopted by the SEC last year in response to the Ponzi scheme perpetrated by Bernard L. Madoff. Under the new system, an advisory firm the SEC considers to have custody over client assets has to pay for an annual audit to properly account for all funds and trades.
According to SEC records, the new rule affects 10 percent of the 25,000 RIAs, including those who handle trust accounts for families, charities and retirement plans such as 401(k)s and ESOPS.
With few exceptions, trustees are now deemed to have custody, but advisors who let a corporate trustee handle the trustee work are off the hook.
Christopher Holtby, president of Wealth Advisors Trust Company, tells me that the new rule is a boon for companies like his, which specialize in doing just this.
“It lets us do your heavy lifting.” he said. Dan Ehrmentraut, JD is Wealth Advisors’ Director of Business Development, comes to Wealth Advisors Trust Company with over 20 years experience in the directed trust advisory business.
By partnering with a separate trust administrator, advisors can go on managing their clients’ assets without being considered the custody provider. The arrangement is known as a directed trust.
The decade-old trust feature that splits trustee and advisor into separate operations has become accepted practice for banks and trust companies nationwide. Trust Advisor Blog wrote a story several weeks ago that explained how they work.
I spoke to several accounting firms recently to determine how expensive the compliance audits will be. Estimates range from a low of $16,000 all the way to $100,000, largely depending on the stature of the firm.
The expensive part of the engagement involves an internal control report similar to a SAS‑70 audit, which must be received by the SEC within six months of becoming subject to the requirement. In addition, advisors must respond to new questions on a revised Form ADV.
Given these headaches, Christopher Holtby at Wealth Advisors Trust tells me that directed trust is a “win-win situation” because there aren’t any conflicts of interest and “if you work the math out, our fee is substantially lower than the compliance cost.”
Holtby’s firm is based in South Dakota, where trust rules are most favorable to advisors. His firm can also support dynasty and asset protection trusts, which are most desirable with high-net-worth investors to complement their estate plans.
MULTIFAMILY OFFICE PROVIDERS AFFECTED
Many advisors are still trying to work through compliance problems, says Valerie Baruch, assistant general counsel of the Investment Adviser Association, a Washington, D.C.-based trade group that has been on top of this issue since the beginning.
Over the last few months, advisors have wrestled with serious confusion as to who needed to comply. The SEC eventually posted clarifications on its website that dealt squarely with the central question:“If an employee of an advisory firm serves as a trustee to a firm, does the advisory firm have custody?”
The answer to the question, according to the SEC, is “yes.” However, the clarification, released only a week before the new rule went into effect, did not give advisors much time to shop for accountants or deal with the issue properly. While the Trust Advisor Blog received many questions from advisors over the last several weeks concerning this, the matter seems to have been laid to rest—for the time being.
In addition to advisors who serve as trustees, those who provide multifamily office services also come under scrutiny of the new SEC custody rules.
I spoke to Mari-Anne Pirsarri, a Washington, D.C.-based lawyer, who told me that any time an advisory firm has the ability to direct the custodian to pay a third party, the SEC says the advisor has custody.
David Newkirk, a managing director with Schwab Institutional, told me that when advisory firms serves as trustees or have the ability to tell us to send money to third parties, they effectively have trust custody. He added “We beat this question up pretty well,” he told me.
I also spoke to Steve Austin at Fidelity and that firm’s position is identical to Schwab’s. “It’s cut and dry,” he said. “The advisor has custody when they tell us what to do with the money.”
Mari-Anne Pirsarri told me the SEC has made additional clarifications (and a few exceptions) for multifamily office providers. For example, she says when a client calls up an advisor who is also a multifamily office provider and says, “Pay my taxes for $50,000,” that involves custody. However, if the client calls up the advisor and says, “Move my money from Schwab to Fidelity,” custody isn’t an issue.
She notes that there is so much confusion because, after awhile, the arguments start circling back on themselves. But the SEC means business, she says. “The SEC is not backing off on this one.”
Despite this, the SEC has made a few concessions. When the audits were first proposed last year, the SEC took the position that even deducting fees from client accounts represented custody. The SEC received over 1,000 letters and wound up agreeing that advisors who are simply authorized to collect their fees did not have true custody over their accounts.
Jerry Cooper, senior editor, The Trust Advisor Blog. Scott Martin contributed to the editing.
Permalink: http://thetrustadvisor.com/news/custody
Are Directed Trusts Too Good to Be True?
Posted by Jerry Cooper in News on February 5, 2010
Decade-old trust feature that splits trustee and advisor into separate operations has become accepted practice for banks and trust companies nationwide; but questions remain: will they last?
On the surface, directed trusts are an obvious win for everyone. Splitting the administration of a newly created trust from the responsibility of managing the assets within it lets legacy advisors keep their accounts and custody provider—such as Schwab or Fidelity. Trustees avoid the headaches of managing exotic assets, while their clients can feel secure knowing that experts are in charge of every aspect of their wealth.
Jeffrey Lauterbach gets credit for turning the concept into a trust operation that propelled his firm, Capital Trust, from zero to $6 billion in trust assets in six years. “It was always market driven,” he told me in a recent interview. “Advisors told us want they wanted, and we delivered.”
Lauterbach sold his operation in 2005, which was subsequently sold to Wilmington Trust in 2007. He added, “Wilmington tried to make a go of it by itself, but didn’t stick with it long enough to make it work. We did”
Today, firms like Advisory Trust of Delaware (Capital Trust’s successor, owned by Wilmington Trust), Santa Fe Trust, Reliance Trust and Wealth Advisors Trust Company of South Dakota are actively courting advisors who want to add value without handing off the relationships they’ve worked so hard to build. Fees are generally split between trustee and investment manager, which helps make sure everyone stays happy.
These advisor-oriented trust companies are also promoting the directed trust model directly to wealthy people who may benefit from a trust but don’t feel like handing the reins of a family business, for example, to a relative stranger who knows nothing about how to keep the business going. In these cases, setting up a directed trust lets insiders stay in charge and still enjoy the other advantages of ownership under the trust structure.
“A corporate trustee doesn’t want to get involved in running a closely held business, and families don’t want corporate trustees interfering in a lot of their decisions,” trusts and estates lawyer Bruce Stone told Lawyers USA (a professional monthly for the legal profession) back in 2007. “With a directed trust, the corporate trustee only has to do certain things.”
Liability in the Details
So far so good, but if things go wrong, the question of who gets blamed still gets decided on a state-by-state basis. The limits of a trustee’s responsibility to monitor the advisors assigned to direct the trust’s investments are often nebulous, and some have been sued for failing to spot and stop misconduct fast enough.
It’s a controversial topic even among The Trust Advisor’s readership. When we posted back in January our analysis of the most trust-favorable states, estate planners piped up with corrections.
“In your chart, you indicated that Florida doesn’t have a power to direct,” wrote Lester Law, a senior vice president at U.S. Trust Bank of America Private Wealth Management working in Naples, Florida. “Can you review the … statute and let me know what you think?” And Boulder, Colorado attorney Scott Robinson alerted us that “The chart indicates that Wyoming does not have a directed trust statute. Wyoming does in fact have such a statute.”
Two Approaches
In an influential 2007 white paper on the subject which may be downloaded, ”Directed Trusts: Can Directed Trustees Limit Their Liability?,” trust guru Richard Nenno, a managing director at Wilmington Trust Company of Delaware, divides the roughly 30 states that allow directed trust arrangements into two main groups. Most (including, according to the white paper, Florida and Wyoming) followed the approach laid down by Section 808(b) of the Uniform Trust Code.
In these states, trustees have to monitor what’s going on in the investment side and step in if the terms of the trust are in danger of being broken. This means the trustee’s potential liability still exists—in whole or in part—even though the work of managing the assets has been assigned to someone else. “Unless the governing instrument provides otherwise, a directed trustee must devote considerable resources” to the job, Nenno writes. In plainer terms, in these states, second-guessing the legacy money manager can be a grind.
However, other states, including Delaware, South Dakota and most of the Trust Advisor top tier, take what Nenno calls “a more protective approach” based on statutes that go beyond the UTC. In these states, trustees are held more-or-less blameless for anything that goes wrong in an area the trust grantor explicitly assigned someone else to handle.
Utah, for example, assigns directed investment advisors separate fiduciary responsibility; the trust company is almost completely off the hook for following the advisor’s investment calls except in cases of gross negligence or willful misconduct.
In these states, Jeff Lauterbach told The Trust Advisor, it’s cut and dried. “The trustee was directed to do something and the trustee did what he was supposed to do, he’s not liable. The advisor’s liable.”
“A Competitive Issue”
Whether a state has been content to go the UTC route or opted for more comprehensive directed trust rules can make or break its ability to support advisors cultivating directed trust arrangements. Joan Crain, a senior director at BNY Mellon Wealth Management in Fort Lauderdale, told Lawyers USA that it’s “a competitive issue” and that the 2007-era Florida rules didn’t go far enough to protect trustees.
“You still have the duty to oversee, to monitor, to intervene,” she said. “The directed trustee statutes in the few states that have strong ones are explicit as to the lack of responsibility on the part of the trustee for reviewing the actions of the investment manager.”
Even in relatively protected states like Delaware, where directed trust statutes go back to 1986, lawsuits still happen. Nenno’s own Wilmington Trust was a defendant in 2004 after the securities lawyer directed to oversee a trust’s assets sued the trust company for following his advice. The court found Wilmington blameless, noting that the investment advisor was happy to collect management fees and so was implicitly accepting the wages of failure.
As Leo Strine, the court chancellor who heard the case, summed up: “Had he wished for Wilmington Trust to be investment advisor to run a high-risk portfolio, I’m sure Wilmington Trust likes to make money. It would be willing to do it. It costs a lot more.”
Jerry Cooper, senior editor, The Trust Advisor Blog. Scott Martin and Steven Maimes contributed.

