Old Habits Die Hard - Rethinking Your Default Provisions for More Effective Drafting

February 7, 2023 at 10:00am12:00pm


As a drafting attorney, do you use the same tax apportionment clause in every client’s will? Rarely stray from an A-B trust structure for married clients? As a professional trustee, are you comfortable relying on state law for trustee liability, or do you require specific trustee liability provisions? Do you prefer a hybrid distribution standard or a fully discretionary standard?

Most drafting attorneys have preferences on all of these—and those preferences may or may not align with the preferences of fiduciary counsel and trust administration attorneys. If another lawyer or trustee were administering your client’s trust 20 years from now, would your client’s intent be clear? Would your default provisions help or hurt that intent?

Director Matthew Hillery joins a panel hosted by the Boston Bar Association to discuss the pros and cons of different drafting approaches, some of the most common default provisions in trust documents, and when it may be time to rethink the approach.