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Incentive Trusts - your thoughts?
Old 10-16-2015, 01:16 PM   #1
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Incentive Trusts - your thoughts?

Unfortunately, there is a long standing and serious on-going issue with one of the four siblings in our family. To be concise (OK, I see I failed, but I tried - the full story would take volumes and make your skin crawl), the 'odd one' feels he was cheated by another sibling in a business transaction many years ago (the facts do not back this up in any way, but facts are irrelevant to the 'odd one', and the story is so convoluted as to be humorous, if it weren't so serious). The 'odd one' holds a grudge that has consumed him. He has harassed the other sibling over and over again for years, threatened his business, and harassed the other siblings as we try to mediate the situation (the 'odd one' claims we are 'ganging up on him').

The 'odd one' has not held a job in decades (so no SS due him), and unfortunately, despite everyone, including several counselors, telling our Mother that she needs to let the 'odd one' be independent and responsible, she continually bails him out. She has covered his housing and expenses all this time, his child support, and he has lived with her now for the past decade. Her 'Motherly Love' just won't let her apply the 'tough love' that he needs. And living with her, he has her ear 24/7 and manipulates her into seeing him as the victim in all this.

But she isn't completely blind to the situation. She knows he really isn't responsible with money. So she has established a trust for him, and his share of any inheritance will go to his trust, with the local bank as trustee, with instructions to distribute only the income, plus some discretion to invade principal for health, education, etc. BTW, several years ago, after one of his outbursts, we convinced Mom to take us three siblings off her will/trust as executors, and name the bank as executor/trustees, so he cannot make any ridiculous claims that we 'cheated him' in settling the estate. I'm sure this will cost us all in fees and delays, but far better that than to be in a position for him to accuse us of anything (and he will).

Unlike the other siblings, he is completely dependent on this future inheritance (which, after being divided across 4 siblings, and a fifth share to the grand-kids, isn't really going to provide him with much more than subsistence living). I doubt he understands this. But if he got it in a lump, he'd blow it in no time (and then be after us for all we 'owe him').


Incentive Trusts: Our concern is, that after Mom has passed, there will be no controlling his rage (which has already been seen at a level we would call 'crazy' on several occasions - like 'ready to call 911' crazy), and he will lash out at us, and harass us for everything he feels he was short-changed on, and probably make up new issues out of thin air. At one point, it got so bad that Mom actually did threaten to take him out of the will, and he suddenly (and sickeningly) turned into a little puppy dog, promising to do whatever she wanted. So without that threat in place, we fear what will happen. Restraining orders and such are not easy from what I understand, and likely not very effective. So that leads to the idea of an 'Incentive Trust'.

It took some googling before I found that term, but that will bring up plenty of links/info. What we are thinking of, is having Mom add a clause to his trust, that if he harasses any of us, our businesses, or friends in any way, any negative communication at all, that his distribution for the year will be directed to a charity of the other sibling's choosing. Further occurrences will result in that next year's distribution being withheld, etc. I do think her long time lawyer is pretty aware of all these issues, but I'm looking for info before we approach Mom and the attorney.

I suppose the bank that is trustee will need something like an arbitrator to determine if the threats are legitimate, so that would need to be set up. Of course, the hope is that this is effective, so the threats never materialize. The lawyer and bank may be able to guide us here.

Does anyone have any experience with this sort of trust? Most of the links deal with trying to motivate keeping a job, education incentives, etc, or ongoing drug/alcohol tests. So this is a little different, but very necessary in our view. I do think we can get Mom to understand this, she has seen his rage (but of course tries to overlook it, I guess some parents just want to pretend that 'little Johnny' is a good boy at heart).


Sorry again for the length of this, but it is really a big issue for us, he has made our lives miserable in the past, and we fully expect future problems on an even larger scale. Yes, 'managing from the grave' isn't a great way to go, but I don't see any other path at this stage. Nothing but the threat of withholding money has had any effect on him in the past. Such a sorry state of affairs. Mom is currently recovering from a major operation, so that has brought all this to the front burner.

If there's any bright side to all this, it sure makes me appreciate that my own children are all responsible, and get along well together, and I've told them all that recently. I credit DW for most of that.

Thanks in advance for any input - ERD50
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Old 10-16-2015, 01:47 PM   #2
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I'm sorry to hear about your situation. I'm not sure an incentive trust is the way to go, because that may require a lot of expense to prove what was said or done. Why not just have his share put into an annuity for him and leave the bank out of it? Using a bank as trustee will eat a lot of the available funds, even more than an immediate annuity.
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Old 10-16-2015, 02:05 PM   #3
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Thanks Dash man, but the problem is he will still be going after family members for other money he feels he is owed. The payments from a trust or annuity won't satisfy him, as he sees that as just his share of the inheritance, separate from what he thinks he is owed from the business deal. And he didn't claim he was cheated until long after the statute of limitations was up anyhow, and he has no evidence of anything, it's all just a crazy fiction. He says he 'forgot' about the supposed extra money that was due him.

It has become an all-consuming obsession for him that he was wronged, and he seeks 'justice'. It's a matter of pride to him, in addition to money - his ego needs to be pumped up with a 'win', and a put-down of his brother as a cheater.

We are looking for leverage so that he doesn't harass us. His inheritance is the only leverage we feel we have. He won't listen to reason, and other legal remedies are probably long and difficult and of questionable effectiveness.

-ERD50
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Old 10-16-2015, 02:12 PM   #4
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Well, we have a clause in our trust that if anyone challenges our wishes as outlined in the trust, that they are to be immediately excluded from any proceeds of the trust. Have her set up the annuity in the trust and include a similar clause. Just a thought. We used an estate planning attorney, but laws do vary in each state so check with your mom's attorney. I'd just hate to see you set up a situation where you're all in court fighting over whether he said or didn't say something to get a payment for that year.
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Old 10-16-2015, 02:23 PM   #5
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Well, we have a clause in our trust that if anyone challenges our wishes as outlined in the trust, that they are to be immediately excluded from any proceeds of the trust. ...
But isn't that the same thing as I'm talking about? The clause would be, "Don't harass the family, don't ask them for money, don't ask them to support your 'charity work', etc". Yes, it comes down to an issue of evidence and judgement on what constitutes harassment, but we are thinking the threat alone might stop him.

The will/trust already has a 'non-contest' clause in it. But that won't do it, this 'business deal' alleged issue is separate from the inheritance. With my Mom gone, there is no leash on him whatsoever (other than legal procedures), and we think he will harass the family in an attempt to get his way. It's just that we are looking to use the inheritance payments as leverage to force him to not harass us.

-ERD50
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Old 10-16-2015, 02:28 PM   #6
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Originally Posted by Dash man View Post
Well, we have a clause in our trust that if anyone challenges our wishes as outlined in the trust, that they are to be immediately excluded from any proceeds of the trust. Have her set up the annuity in the trust and include a similar clause. Just a thought. We used an estate planning attorney, but laws do vary in each state so check with your mom's attorney. I'd just hate to see you set up a situation where you're all in court fighting over whether he said or didn't say something to get a payment for that year.
My mother has that clause in her trust. The trust attorney suggested it when we raised the possibility of challenges. In this case the trust language gives the trustee total authority and the final word.
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Old 10-16-2015, 02:31 PM   #7
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That's a difficult situation. If you are certain he will cause problems later whether Mom leaves him money or not, it may be better for her to not leave him anything. In that case he'll have no resources for legal proceedings.
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Old 10-16-2015, 02:52 PM   #8
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My mother has that clause in her trust. The trust attorney suggested it when we raised the possibility of challenges. In this case the trust language gives the trustee total authority and the final word.

It won't give the trustee authority to withhold ongoing payments for 'bad behavior' - only to withhold against challenges to the will/trust. That's the (complicated) rub here. And 'bad behavior' must be defined and judged and is somewhat subjective. We'll see, but I don't think your basic trust dept of a bank wants to take that on.

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That's a difficult situation. If you are certain he will cause problems later whether Mom leaves him money or not, it may be better for her to not leave him anything. In that case he'll have no resources for legal proceedings.
Leaving him out of the will/trust would seal the deal - he will definitely harass us then. He won't go the legal route, no one would take on any case he dreams up.

And the fact is, he needs the money. Mom raised him to be irresponsible, nothing is going to change that after all these years. Let him have the money and he at least won't be on the street. Let bygones be bygones is the best I'm hoping for.

-ERD50
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Old 10-16-2015, 03:06 PM   #9
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I would not do the incentive trust.

Getting the bank to be the sole executor is a good idea. I'm one of three sons and my mother had me as an executor on her will. I spoke to her about this and said I didn't want there to be any question of favoritism so got her to take me off it and appoint the solicitors as the sole executor. When Mum died it was a blessing to have someone to take care of all the legal paperwork and wrapping up of the estate which let me an my brothers concentrate on the funeral and cleaning up the house for sale. The fees were well worth it.
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Old 10-16-2015, 03:16 PM   #10
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It sounds like you built up a nice distance between the crazy one and the rest of the siblings and then are creating a situation where once again any of the siblings could screw him out of his rightful due. Doesn't seem like that would go well.

I'd try to have something more objective and verifiable in place. Like he must keep a clean police record, to some extent or other. Something that represents an official confirmation of the normal siblings claims, is easily accessed by the trustee, and does not specifically have anything to do with the siblings. Something a restraining order, for example, would trigger. Not sure what other official data might apply, but simply paying bills on time or having a credit rating above XXX might be interesting add-ons.

I'd also be wary of cutting all income off completely. Then the crazy guy is hitting the rest of you up for money. Starting with a token amount (5% to 10%?) allows you to trigger it with a lesser offense, provide a behavioral warning, but still let him scrape by. Worked for us when raising our kids at least. We rarely had to go beyond an easy first step that the kids knew we would actually do. Way better than empty threats.
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Old 10-16-2015, 03:17 PM   #11
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If the debts owed are older than the statute of limitations in your state they can't be enforced, any law suit would be bounced. About all you could do then is to shun the person.
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Old 10-16-2015, 03:24 PM   #12
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I'd also be wary of cutting all income off completely. Then the crazy guy is hitting the rest of you up for money. Starting with a token amount (5% to 10%?) allows you to trigger it with a lesser offense, provide a behavioral warning, but still let him scrape by. ...
That makes sense to me - something to chew on.

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If the debts owed are older than the statute of limitations in your state they can't be enforced, any law suit would be bounced. About all you could do then is to shun the person.
They couldn't be enforced even within the statute of limitations, they are ridiculous claims. We do shun him (we try, but Mom wants these 'kumbuya' moments), but that won't keep him away from harassing us - that's the concern.

Thanks all, some good food for thought - I'll probably be out the rest of the aft/eve running errands and trying to tie up some loose ends for my Mom.

-ERD50
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Old 10-16-2015, 03:49 PM   #13
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I don't think there is anything in a will or trust you can do to stop him from harassing you and your siblings. But if he's persistent, perhaps a restraining order would be a good idea. As you mention - his issue is the long ago perceived business deal/wrong... That is outside the scope of the will.

I like the idea of the annuity, though, since that meters out the money at probably a lower cost than a bank executor.
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Old 10-16-2015, 05:10 PM   #14
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And 'bad behavior' must be defined and judged and is somewhat subjective. We'll see, but I don't think your basic trust dept of a bank wants to take that on.
I think that's the issue that may kill the idea of using the trust to make him behave. From your description of your brother he may take up a lot of time with the bank staff, and I would think they would bill the trust for that if it becomes excessive. Still, half a loaf is better than none and it may redirect his ire from siblings to the bank so it's worth asking about.

Talking with your Mom's attorney would be a good idea, state laws vary so much it is hard to guess what would be allowed.
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Old 10-16-2015, 05:18 PM   #15
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No experience in these, but a thought or two:

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Originally Posted by ERD50 View Post
It took some googling before I found that term, but that will bring up plenty of links/info. What we are thinking of, is having Mom add a clause to his trust, that if he harasses any of us, our businesses, or friends in any way, any negative communication at all, that his distribution for the year will be directed to a charity of the other sibling's choosing. Further occurrences will result in that next year's distribution being withheld, etc. I do think her long time lawyer is pretty aware of all these issues, but I'm looking for info before we approach Mom and the attorney.

I suppose the bank that is trustee will need something like an arbitrator to determine if the threats are legitimate, so that would need to be set up. Of course, the hope is that this is effective, so the threats never materialize. The lawyer and bank may be able to guide us here.
I would be afraid of the bank being bombarded by a few lawsuits by your brother. I don't know if the bank would then charge the trust's assets for the legal costs incurred in defending the bank in the course of its duties as trustee for the trust or not. Just a few lawsuits and boom - there goes $100k in assets.

Also, I'm afraid your description of "harassment" is way too vague - what is "harassment"? Would a judge see it as restricting his freedom of speech? No one currently has a restraining order against him (do they?), so there's no standing precedent of some exceptionally unwanted attention from him. You might end up with a judge who knows nothing about your history and who, on that particular day and time, gives you both just 2 minutes to condense all of your history into your argument, and who feels it's you and your well-to-do siblings ganging up on this poor guy who's never had a decent run of luck and don't even want to hear from their own blood brother!

If you want my personal experience with an ex-fiance and an attempt at a restraining order, PM me. If I wasn't able to get something to protect my privacy and solitude in my particular situation given her 'harassment', I doubt you would be successful.

How would you prove or document his harassment of you and your siblings? You would then be putting the bank trust dept in the position of being an arbitrageur or judge of sorts to determine in their own opinion what constitutes "harassment" (and thus opening them up to a lawsuit by your brother for unfairly defining his actions as harassment), and I don't know if their legal department would be interested in that extra line of work.

And worst-case situation: he continuously harasses the bank in various ways, (or he keeps harassing you and your siblings, and you all keep telling the bank about this action or this instance) and they get so sick and tired of it all that they come to you and your siblings, hand over the assets, and say "HERE - take over the trust. We don't want it. Get you and your assets and your brother and take a hike! It's not worth the headache and trouble!"? If that did by chance happen, what would your next step be?

Also, the bank will most likely invest the funds in in-house mutual funds. There goes another $100k+ in underperformance.

I personally also like the suggestion of an annuity - there is no chance of him "contesting" it via legal fees to whittle down the assets of the trust, and all you have to do is shrug your shoulders and say "Well, that's what mom decided to do! There's nothing we can legally do about it!".

I know when it comes to annuities, they typically only have period-certain terms of maybe 10 years, but is there a way to get maybe a 20-year period certain annuity (or some other suitable timeframe) that would 'guarantee' your brother has at least some income to him (or his estate, should he pass away before the end of the annuity)? That way, you'd avoid a standard 10-year period certain annuity that would likely see him blowing it all in just 10 years, while still ensuring there is something left should he pass on early.

Maybe try Vanguard and see if they offer something in their managed distribution, where heirs would automatically get 5% distributions per year, invested in a balanced fun? Didn't someone post that Vanguard is starting to offer some form of estate planning in a trust department?
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Old 10-16-2015, 09:02 PM   #16
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Hi, I just got back and made a quick read of the replies. Thanks very much to everyone, there are some very important issues covered in these replies. Much to think about, and I really appreciate having some other eyes on this (this is really a great forum!). It will take me a while to absorb everything and formulate a full reply, so just a few quick points for now:

Annuity for the "odd-one's" trust (I'll just call him "OO" from now on ) - at first, I though an annuity was a great idea (from an investment standpoint - it does not address the issue of controlling his behavior). Get the annuity set up, and he's covered for life, no investment decisions and high fees from a bank (not sure bank fees would be worse than annuity fees, but at least the annuity cost is known and locked in at the purchase). But there are two issues - inflation, and (more importantly), he has a daughter (who is fairly level-headed, all things considered) that would inherit his share 'per stirpes', so if he passed, nothing would go to her. I guess the X years certain would help with that. After all, I doubt that his daughter is expecting any inheritance from her Dad long term (she can see he's a dead-beat), so maybe an X years certain annuity could work. I just wouldn't want to see her left out, though we could throw her some support from whatever we get - we really don't need it.

The other thing that I think some posters are missing - and I'll take the blame for that with such a long entry post - is it isn't an issue of him contesting the will or my Mom's trust (they have no-contest clauses), or his trust (he's the sole beneficiary, nothing really to contest, other than the fact that the bank determines the quarterly payments, but I think even he understands the reason for that - to keep him from blowing it). It's a longer term issue.

The bank, as trustee of his trust, will dole out some % each quarter (the income, and invade the principal only at their discretion for health, well being, education, etc). Fine. The issue is, the other 3 siblings are afraid that he will harass us over money that he thinks is owed him for things outside any inheritance or trust amounts (the business transaction with one brother, that he feels he was cheated on). He resents that the other brother was successful with the business that the "OO" (the 'Odd One") sold, and is looking for some kind of payback. As I said, this has become a totally consuming, emotional thing for the "OO" - his entire self-worth is wrapped up in it.

So the real question is - how do we protect ourselves from his harassment down the line - after the will/trust is settled and closed, for issues outside the will/trust, and our Mom is no longer there to reign him in with threats of cutting him from the will? That is why we are looking into an "Incentive" clause in his trust. To get his quarterly/annual payment, he needs to just avoid negative contact with us. On one hand, that seems pretty simple.

But yes, I agree that the bank, as trustee, doesn't want to get into these subjective judgements. I do envision that we go to an arbitrator. Maybe the siblings put up the arbitration fee, say $1,000 or whatever, and if it is determined that our evidence is insufficient, we pay that fee. If it is found to have substance, the fee is returned to us, and paid from the "OO"'s trust, and his annual distribution is sent to a charity of our choosing.

Whew - even that got long - sorry!

-ERD50
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Old 10-17-2015, 04:46 AM   #17
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OP,

Sorry but you are just creating a new cause for harassment by all these ideas of incentives and arbitration, etc. The inheritance and the old grudge are two separate things. I would recommend keeping them separate.

If OO comes harassing the family members over his perceived slight, get a restraining order and have nothing to do with him. It really is the only thing you an do.
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Old 10-17-2015, 05:50 AM   #18
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If you intend to arrange the trust such that it pays or not based solely on the word of the other siblings, you'd be better off making the siblings the trustees. After all, either way he'd know that it was ultimately your call whether he gets paid, the bank isn't really offering deniability, just expense and complication.

Also it would be a lot cleaner to just withhold payment rather than paying a charity, especially one not spelled out in the trust.
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Old 10-17-2015, 05:59 AM   #19
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Wouldn't it be easier and less painful in the long run to pay him the specific amount he feels he is owed? If you and the other siblings are already set financially, it could end the obsession with the odd one. It sounds like it has been an obsession about the same issue, real or imagined all these years, rather than a series of new, unrelated issues. This could heal things and be the end of the pain and conflict. Sometimes being right is not the most important thing. Think about it.



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Old 10-17-2015, 08:21 AM   #20
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As others have alluded to, I suspect you create more ill-will by having mother handle OO's inheritance different from other siblings. Regardless of facts, he will see it as further unfair treatment and most likely increase resolve to inflict pain. Either all get trusts etc. or no one. The advantage of OO getting share immediately is it may buy years of quietness/distraction from/for OO until money runs out.

And there is the rub. Are you (and other siblings) prepared to turn your back on OO if he burns through all his money irresponsibly?


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