Fiduciaries must choose among investments objectives that differ in their risk and return characteristics, with optimal investment risk and return choices that afford consideration to the income beneficiary’s interest in maximizing income over their expected time horizon and the remainder beneficiary’s respective interest in principal preservation.  First, the fiduciary selects the investment objective based on the terms and purpose of the trust, then determines the risk profile based on the purpose of the trust and circumstances and time horizon of the beneficiaries. Next, the fiduciary formulates an asset allocation that meets the investment objective and risk tolerance and then implements that asset allocation (e.g., selection of securities in equities, fixed income, alternative investments, and cash).  The Trustee has the benefit of investing a Marital Trust with a long-time horizon depending on the Income Beneficiary’s age and life expectancy.

A trustee who directs third parties to select investments and manage the trust portfolio is charged with supervising the investments in a manner that does not favor one beneficiary at the expense of others. The requirement that trustees discharge their responsibilities with impartial regard for the interests of all trust beneficiaries is one of the fundamental requirements of trustees imposed by the common law and enshrined in state statutes.

Inflation is also a circumstance that the trustee shall consider in investing and managing trust assets, which has become more of a central focus recently. In 2021, CPI was 7.1%[1] In 2022, CPI was 8.0%[2] According to the C-CPI-U, prices increased by 7.8% between 2021 and 2022. This was the largest annual increase in the cost-of-living adjustment applied by the Census Bureau since 1981.[3] Between July 2022 and July 2023, inflation was 3.2%.[4]

When comparing the income generated for an Income Beneficiary as a percentage of total portfolio value, the income generated must exceed the rate of inflation in most cases to be determined prudent.

The purpose of a marital income qualified terminable income trust (“QTIP”) is to generate income for an income beneficiary, while preserving the interests of the remainder beneficiaries by maintaining the value of the principal on an inflation adjusted basis.  Under the Equitable Adjustment (“EA”) method, the trustee has the ability to reallocate the portfolio’s returns if the trustee believes that the initial allocation improperly favors one class of beneficiary over another.[5]  For instance, if the trustee’s investment decisions yield an inappropriately low amount of income for the income beneficiary, the trustee could distribute a portion of the principal to the income beneficiary to compensate for the shortfall.[6]  Alternatively, the Trustee would fulfill its fiduciary duty of impartiality by petitioning the court to convert a Marital Trust (an income trust) to a Total Return Unitrust.[7] The UC method represents a slightly more structured and objective apportionment procedure as allocation to beneficiaries are based upon a fixed percentage of the total trust assets.[8] The UC method of allocation also provides much greater limits on trustee allocation discretion as the trustee bound by a specific allocation formula, and thereby limits the potential for the exercise of erroneous, imprudent, or negligent judgment.[9]

As the Federal Reserve has increased interest rates, the Trustee, under modern portfolio theory, must reallocate the portfolio and may adjust the investment objective from growth to income & growth, and diversify between fixed income securities and equities. Reallocations may increase the income to the Income Beneficiary, allow for capital appreciation for the benefit of the remainder beneficiaries, and reduce the risk associated with an undiversified portfolio of only equities.

[1] Bureau of Economic Analysis, Bureau of Labor Statistics. https://www.stlouisfed.org/on-the-economy/2022/apr/2021-year-high-inflation
[2] Bureau of Labor Statistics, U.S. Department of Labor, The Economics Daily, Consumer Price Index: 2022 in review at https://www.bls.gov/opub/ted/2023/consumer-price-index-2022-in-review.htm (visited September 11, 2023).
[3]https://www.census.gov/newsroom/blogs/research-matters/2023/09/inflation-income-and-earnings-estimates.html
[4]https://www.census.gov/newsroom/blogs/research-matters/2023/09/inflation-income-and-earnings-estimates.html
[5] John H. Langbein, The Uniform Prudent Investor Act and the Future of Trust Investing, 81 IOWA L. REV. 669 (1996).
[6] Id.
[7] VA Code § 64.2-1036, subsection D, see also VA Code § 64.2-1003.
[8] Alyssa A. DiRusso & Kathleen M. Sablone, Statutory Techniques for Balancing Financial Interests of Trust Beneficiaries, 39 U.S.F. L. REV. 261, 282 (2005). 
[9] See Lyman W. Welch, Brave New World of Total Return Laws, 141 TR. & EST. 24, 27-28 (June 2002).