Abstract
This Essay is based on a panel discussion at Asset Protection and Trust Innovations: South Dakota’s Role in Paving the Way for Innovations Nationwide, organized by University of South Dakota School of Law. The largest transfer of wealth in U.S. history will occur over the next thirty years, as the aging baby boomers prepare to transfer an estimated $30 trillion. A desire to balance privilege and personal responsibility is reflected in this generation’s aversion to “trustafarians” and the seeming popularity of incentive trust provisions. Incentive trusts incorporate financial incentives and disincentives designed to encourage the positive behavior of a beneficiary.
The purpose of this discussion is to explore the idea of incorporating learning outcomes into the drafting of incentive trusts, when the incentive provision requires that the beneficiary develop a skillset as opposed to merely complete a binary task. In the context of legal education, law schools are moving away from focusing on the ability of the student to complete a particular course, and are focusing instead on the broader outcome: a graduate’s ability to demonstrate knowledge and understanding of the law such that the graduate can deliver legal services of a high quality. By incorporating a clearly articulated objective in an incentive trust when the grantor wishes for the beneficiary to develop a skillset, the beneficiary may be moved towards an intentional paradigm of learning. By way of example, the proposed approach will be framed within the context of a laudable proposed goal: creditworthiness of the beneficiary.