Also known as: ascertainable standard · ascertainable-standard doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A standard relating to an individual's health, education, support, or maintenance within the meaning of the Internal Revenue Code provisions governing general powers of appointment. The standard limits a trustee's discretion to make distributions for the trustee's own benefit or a beneficiary's withdrawal rights.
Anika Anand serves as both trustee and beneficiary of a family trust. The instrument permits her to distribute principal to herself only for documented medical expenses. Because the authority is confined to an ascertainable standard, her creditors cannot compel distributions beyond what the standard requires.
Andrew Avery holds the right to demand any amount of trust principal at any time. The instrument imposes no requirement that withdrawals serve health, education, support, or maintenance. The absence of an ascertainable standard causes the right to qualify as a power of withdrawal reachable by creditors.
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Alan Ackerman, as co-trustee, may invade principal only to pay his own medical bills and educational costs. The limitation to health and education satisfies the ascertainable standard. The trust assets therefore remain outside his taxable estate at death.
An ascertainable standard prevents classification as a power of withdrawal only when the power is held by a trustee and is limited to health, education, support, or maintenance. A beneficiary who is not acting as trustee retains a power of withdrawal even if the instrument mentions those purposes.
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Creditors generally cannot compel distributions from a discretionary trust even when the instrument uses an ascertainable standard. The standard guides the trustee but does not create an enforceable right that ordinary creditors may reach.
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Yes. When a trustee-beneficiary's power to distribute to herself is limited by an ascertainable standard of health, education, support, or maintenance, the power is not a general power of appointment. The trust assets are therefore excluded from the trustee's gross estate.
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Language authorizing distributions for health, education, support, or maintenance creates an ascertainable standard. Vague terms such as "as the trustee deems appropriate" or "true commitment to justice" do not qualify.
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…amounts “as they shall deem advisable for his comfortable support and maintenance.” This language has been interpreted to set an ascertainable standard, namely to maintain the life beneficiary “in accordance with the standard of living which was normal for him before he became a beneficiary of the trust.” Woodberry v. Bunker , 359 Mass.…