Trustee Documents on Cycle 3 restatements

Since the new rule with trustee agreements not being pre-approved, I have seen some things I am not accustomed to.

Specifically, I have seen documents executed with the only trust agreement being one for a directed trustee So no corporate discretionary trustee and nothing with the employer acknowledging their responsibilities. Perhaps I am just having amnesia since last restatement period, but doesn't there have to be something beyond just a directed trustee?

Are you using a pre-approved document? Most of the pre-approved documents I've seen provide at least a "boilerplate" specimen Trust Agreement, which would often have language for directed Trustees, and for discretionary Trustees. But there's nothing wrong with a Trust Agreement providing specifically for directed Trustees only.

A trustee can be a directed trustee only if the trust agreement provides, somehow, that the trustee is “subject to the direction of a named fiduciary who is not a trustee[.]” ERISA § 403(a)(1).

For such an allocation of fiduciary responsibilities to be effective under ERISA §§ 402-405, the identity of that directing fiduciary must be information a reader could get by following the trail of documents that govern the plan and appointments made under those documents.

And anyhow, a competent bank, trust company, or other person agreeing to serve as a directed trustee would insist on identifying its directing fiduciary, if only to protect the directed trustee.

Typically, a directed-trustee agreement specifies which person is the directing fiduciary. A typical provision is that the plan’s administrator is the directing fiduciary.

By signing or accepting a directed-trustee agreement, a plan’s administrator or other directing fiduciary confirms its responsibility.