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The Secret Your Estate Planning Lawyer Won't Tell You

07/13/2010 09:25 pm ET | Updated May 25, 2011

No one wants to confront their own mortality. That's why so many Americans die without a will, which is the worst possible estate planning. For those who act responsibly and retain the services of an estate planning lawyer, a hidden danger lurks.

The standard estate planning advice is geared (as it should be) around minimizing estate taxes and avoiding probate, where appropriate. That's all well and good. However, a critical area of concern is ignored by every estate planner I have encountered: the management of your assets after death.

Estate planning lawyers receive referrals from major brokerage firms and traditional institutional trustees. The best way to keep these referrals flowing is to refer business back to the source. It all sounds innocuous enough until you understand the devastating consequences of this common practice.

The real money in trust administration is not in the administration fees. It's in the advisory fees generated by the arm of the trustee that manages the assets in the trust. Well in excess of 90% of institutional trustees also manage trust assets. Not only does this create a conflict of interest (how carefully is one division of the trust administrator really going to review the conduct of another division?), but it practically insures under performance of trust assets.

Notwithstanding the overwhelming evidence demonstrating the superiority of passive management, I know of no trust administrator who follows this Nobel Prize winning investment strategy. Instead, they increase the costs to the trust by engaging in active management, in a usually futile attempt to "beat the markets." It's sad that investors who, during their lives, take such care to invest prudently, fall into this trap by following the standard advice of their estate planners.

There is a way to avoid having your assets mismanaged after your death, but don't expect your estate planner to tell you about it.

Insist that your trust be managed by a "directed trustee." These are professional trust administrators who only administer trusts. They do not manage money. The leading directed trustees are Advisory Trust of Delaware, Santa Fe Trust and Wealth Advisors Trust Company.

You will need to give your directed trustee guidance about the kind of financial adviser it should appoint. Here's language I inserted in my trust:

"The Investment Manager shall be guided by the basic principle known as Modern Portfolio Theory. The Investment Manager should make no effort to "beat the markets."

The Investment Manager shall focus on the asset allocation of the portfolio. The portfolio shall be globally diversified, using low cost stock and bond index funds, exchange traded funds or passively managed funds. The investment manager shall be guided by the principles set forth in The Intelligent Asset Allocator, by William Bernstein, A Random Walk Down Wall Street, by Burton Malkiel., The Little Book of Common Sense Investing, by John Bogle and The Smartest Investment Book You'll Ever Read, by Daniel R. Solin."

With the appointment of a directed trustee and the insertion of this (or similar) language in your trust document, you have now protected your assets from being plundered after your death. Based on historical data, the returns of your trust assets could be as much as 300% higher than the historical returns of the average equity investor over the past twenty years.

Of course, you should be following the same investment advice while you are alive. Why should your heirs be the only beneficiaries of Smart Investing?

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