A self-settled fully discretionary trust: May the settlor-beneficiary’s postmortem creditors reach the entrusted property?

Charles E. Rounds, Jr.
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The U.S. Court of Appeals for the First Circuit has just certified to the Massachusetts Supreme Judicial Court the following question: “On the undisputed facts of this record, does a self-settled spendthrift irrevocable trust that is governed by Massachusetts law and allowed unlimited distributions to the settlor during his lifetime protect assets in the irrevocable trust from a reach and apply action by the settlor’s creditors after the settlor’s death.” See De Prins v. Michaeles, Nos. 18-2191 & 19-1095 (Nov. 15, 2019). It would seem that the answer is, or ought to be, no. The settlor possessed at the time of his death a constructive general inter vivos power of appointment. See generally Loring and Rounds: A Trustee’s Handbook §4.1.3 (2019), which section is reproduced in its entirety in the appendix below. That being the case his postmortem creditors should have access to the subject property whether or not there is a spendthrift clause. See State St. Bank & Tr. Co. v. Reiser, 389 N.E.2d 768 (Mass. App. Ct. 1979).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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