The Boilerplate Choices tab allows you to customize selected administrative, fiduciary, and technical provisions included in the estate planning documents. This tab applies to all estate planning packages, including will-based and trust-based plans, for single clients and married clients. The options that appear may vary depending on the structure of the selected plan and the types of trusts it creates.
It is important to understand that even if you select nothing on this tab, the document will still include a comprehensive and carefully constructed set of default boilerplate provisions. These defaults provide fiduciary authority, spendthrift protection, administrative powers, and tax allocation language appropriate to the selected plan structure.
This tab permits refinement of those default provisions.
Definition of Independent Trustee
Certain provisions in this tab grant powers specifically to an “Independent Trustee.”
An Independent Trustee is defined in Agile EP's estate planning documents as a Trustee who:
Is not a current or remainder beneficiary of the trust, and
Is not related or subordinate (within the meaning of Internal Revenue Code Section 672(c)) to any current or remainder beneficiary who was involved in appointing that Trustee
If the acting Trustee does not meet this definition, the document permits a qualified successor Trustee to serve as the Independent Trustee for purposes of exercising those limited powers. If no named successor qualifies, an Independent Trustee may be appointed pursuant to the successor appointment provisions in the document.
Certain modification, tax, and retirement asset powers are exercisable only by an Independent Trustee. This structural limitation is intended to avoid adverse tax consequences and conflicts of interest.
Tax and Expense Allocation Notice
At the top of the tab, a notice explains that the current tax and expense clause allocates estate taxes and expenses, including those attributable to certain nonprobate assets, to the residue, subject to statutory exceptions. This notice does not change drafting by itself. It serves as a reminder to review the default allocation provisions if a different allocation of taxes or expenses is intended. To review the default taxes and expenses article for Agile EP estate planning documents, see this article.
Pooled Investment of Separate Trusts
You may permit a trustee to invest separate but identical trusts as a single pooled account. Each trust remains legally separate, but assets may be administered collectively for investment purposes. This is most relevant when multiple substantially similar trusts are created.
Trustee Authority to Request Drug Testing or Evaluation
You may include additional language granting a trustee authority to require drug testing, alcohol testing, or mental health evaluation as a condition of making discretionary distributions.
If selected, the provision authorizes the trustee to require a beneficiary to:
Submit to drug or alcohol testing and authorize release of results to the trustee
Undergo a diagnostic mental health evaluation conducted by a qualified professional selected by the trustee
Comply with reasonable requests for psychological or biological testing
This provision supplements the discretionary distribution standards selected elsewhere in the plan and provides an additional administrative mechanism for addressing substance abuse or mental health concerns.
Waiver of Washington 60-Day Notice Requirements
You may include language permitting the Trustee to withhold certain statutory notices regarding the existence of a trust.
If selected, the provision authorizes the Trustee, to the extent permitted by law, to withhold notice of:
The existence of the trust
The identity of the Trustor
The Trustee’s contact information
The beneficiary’s right to request information regarding trust administration
The Trustee may determine that withholding notice is appropriate under the circumstances. This modifies default statutory notice requirements and allows the Trustee discretion in determining whether formal notice should be provided.
Restriction on Extension of Vesting Through Powers of Appointment
You may include language restricting the exercise of a non-general (limited) power of appointment in a manner that would extend the duration of a trust.
If selected, the provision prohibits a power holder from exercising a non-general power of appointment to:
Create a new power of appointment that postpones vesting of the property subject to the power, or
Suspend absolute ownership or power of alienation beyond a period that is ascertainable without reference to the client’s date of death
This restriction limits the ability to extend trust duration through the exercise of appointment powers and preserves the intended vesting framework of the original trust.
Reduction of Fiduciary Standard for Individual-Only Fiduciaries
You may elect to reduce the fiduciary standard applicable to certain individual-only fiduciaries to a “good faith and fair dealing” standard. This modifies the default duty framework applicable to trustees serving under the document. Institutional fiduciaries are not affected by this selection.
Confirmation Regarding Non-Family Beneficiary Spouses
You may include language clarifying that gifts and trusts created under the document are intended solely for the named beneficiary and not for the beneficiary’s current or former spouse, domestic partner, or partner in a committed intimate relationship.
If selected, the provision states that:
The client’s gift or trust for a beneficiary is made without contribution from the beneficiary’s spouse or partner, and
The client intends to benefit only the named or described beneficiary
The clause further states that this declaration is intended to serve as clear and convincing evidence of the client’s intent.
No-Contest Clause
You may include a no-contest provision addressing challenges to the validity of the Will and any trusts created under it.
If selected, the clause provides that if a beneficiary or heir contests the validity of the Will or Trust, seeks to have it declared void, or attempts to nullify or set aside any of its provisions, that individual’s interest under the document is revoked. The contestant is treated as though they and their descendants predeceased the client for purposes of distribution.
The clause applies to the entire Will or Trust, including all trusts established under it and all trust beneficiaries. The provision does not apply to actions brought in good faith to interpret an unclear or ambiguous provision.
Elimination of Advance Notice for Change of Trust Situs
You may include language authorizing the Trustee to change the situs (principal place of administration) of any trust created under the Will or Trust
If selected, the provision:
Permits the Trustee to transfer the situs to another jurisdiction
Requires the Trustee to consider the tax consequences of the transfer
Eliminates any requirement to provide advance notice to beneficiaries before transferring situs
Allows the power to be exercised multiple times
Retirement Asset Segregation Provisions
You may include language granting an Independent Trustee authority to manage Deferrable Retirement Benefits (such as retirement accounts) with additional structural flexibility.
If selected, the provision permits an Independent Trustee to:
Segregate retirement benefits from other trust assets
Create a separate trust for the Primary Beneficiary to receive those benefits
Administer that separate trust as either an Accumulation Trust or a Conduit Trust
This authority allows the Trustee to address income tax timing and withdrawal considerations associated with inherited retirement assets while operating within the overall trust structure selected elsewhere in the plan. For a more detailed description of how these provisions work and endeavor to comply with the SECURE Act framework, see this article.
Expanded Independent Trustee Modification Powers
You may include language granting an Independent Trustee authority to modify or reform a trust instrument without court approval or beneficiary consent in limited circumstances.
If selected, the provision permits an Independent Trustee to execute written modifications in order to:
Correct ambiguities or scrivener’s errors that might otherwise require judicial reformation
Improve conformity between the trust’s intended purpose and applicable federal or state law, including tax law
Respond to changes in the Internal Revenue Code or other governing law that could undermine the trust’s intended structure
Modify provisions to preserve or obtain eligibility for governmental benefit programs
This authority provides administrative flexibility to address drafting issues, tax law changes, or benefit eligibility concerns without requiring court involvement.
Closely-Held Businesses Provisions
If selected, this option inserts a comprehensive business administration article into the documentmeant to apply to closely-held (often by a family) businesses.
That article includes provisions addressing:
Ongoing management and retention of a family or closely held business
Waiver of diversification with respect to business interests
Waiver of certain conflicts of interest where a fiduciary of the estate plan is also an officer, director, manager, or employee of the business
Special provisions applicable to S corporation ownership and administration
These provisions are designed to govern continued ownership and operation of a closely held business during estate or trust administration and to address technical fiduciary and tax considerations associated with business interests.
Special Needs and Benefit Preservation Provisions
You may include language permitting a Trustee to restrict distributions or to modify or reform a trust to preserve a beneficiary’s eligibility for governmental benefits.
If selected, the provision authorizes the Trustee to:
Limit or restructure distributions if necessary to avoid disqualifying a beneficiary from means-tested benefits, and
Modify or reform a trust so that it functions as a special needs trust where appropriate
This authority applies only where benefit eligibility is implicated and operates within the overall trust structure selected elsewhere in the plan. For a detailed explanation of how these provisions operate and when they may be appropriate, see this article.
Frequency of Washington Trustee Reports
You select whether UTC-style trustee reports must be provided annually or only upon request.
If annual reporting is selected, the Trustee is relieved from formal court-style accounting requirements but must provide a written trust report to qualified beneficiaries each year. The report includes:
A statement of receipts, disbursements, and fees paid during the reporting period
A listing of trust assets and liabilities
Values of those assets at the beginning and end of the reporting period
This election maintains structured annual reporting to beneficiaries while avoiding formal judicial accounting procedures. If reporting “upon request” is selected, the Trustee’s reporting obligation is triggered only when a qualified beneficiary requests a report, subject to applicable Washington law.
For an in-depth discussion of Washington's application of the Uniform Trust Code's obligation to keep beneficiaries informed, see Washington Trust Laws’ Extreme Makeover: Blending with the Uniform Trust Code and Taking Reform Further with Innovations in Notice, Situs, and Representation, by Karen E. Boxx & Katie Groblewski (Washington Law Review, Vol. 88, No. 3, pp. 813–902, October 15, 2013).
Standard Administrative Boilerplate Included by Default
Even if no selections are made on the Boilerplate Choices tab, the document includes various standard administrative provisions, as applicable to the selected plan structure. If a plan does not create any subtrusts, then boilerplate is generally minimal. However, if the document creates trusts, the boilerplate will typically include provisions addressing these following key administrative issues:
Co-Fiduciary Administration
Where co-fiduciaries are serving, default language permits practical administration of bank and brokerage accounts, including authorization for either co-fiduciary to act independently unless they elect otherwise in writing. Financial institutions are permitted to rely on written delegations of authority without incurring liability.
Digital Assets and Communications
The fiduciary is granted broad authority to access, manage, transfer, control, or terminate digital assets and electronic communications, consistent with federal and state law, including RUFADAA and related privacy statutes. This includes authority to access devices, utilize login credentials, and engage third parties to assist in accessing or decrypting digital assets, subject to any valid online tool directions.
Distributions for Young or Incapacitated Beneficiaries
Default provisions address situations where a beneficiary is under a specified age or is incapacitated at the time of distribution. In such cases, distributions may be made to an existing trust for that beneficiary, to a custodian under the Washington Uniform Transfers to Minors Act, or to a custodial trustee under the Washington Uniform Custodial Trust Act, as applicable.
Significant Non-Routine Transactions
Where a trust is created, the document relieves the Trustee of statutory notice and procedural requirements applicable to significant non-routine transactions under Washington law, including RCW 11.100.140.
Advance notice is not required unless otherwise stated in the document, and the Trustee is not liable for failure to comply with those statutory procedures. This provision applies automatically in trust-based plans.
Spendthrift Protection
Trusts created under the document include a default spendthrift provision. A beneficiary’s interest does not vest until distributed and is not subject to assignment, creditor claims, court process, or bankruptcy prior to distribution. If the Trustee determines that a beneficiary cannot receive or enjoy a distribution due to third-party claims, the Trustee may continue holding the distribution or redirect it to another permissible beneficiary. This protection applies automatically to trusts created under the document.
Trustee Power to Withhold Distributions
Where a trust is created, the Trustee may withhold all or part of a distribution if, in good faith, the Trustee determines that withholding is in the beneficiary’s best interest due to financial instability, health concerns, substance abuse, or similar circumstances. During any period of withholding, the beneficiary’s power to remove the Trustee is suspended. If the beneficiary dies while property is being withheld, the withheld amount is distributed to the beneficiary’s estate.
Restrictions on Trustee Actions
Plans include savings language related to trustee actions so that no Trustee may exercise a power in a way that creates adverse tax consequences or jeopardizes a marital deduction election.
An individual Trustee may not make distributions that satisfy their own legal support obligation and may not participate in distributions to themselves beyond a health, education, maintenance, or support standard. If needed, an Independent Trustee may be appointed to exercise restricted powers.
The descriptions above are high-level summaries of selected provisions. They are provided for general reference only and are not a substitute for reviewing the actual document language. The governing instrument controls in all circumstances.