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An Unusual Clause in Warren Buffett's Will

October 26, 2020

Warren Buffett’s annual shareholder’s letter always garners much attention in the press, given his exceptional track record at the helm of Berkshire Hathaway.  This year’s letter included the revelation of an element of Mr. Buffett’s estate plan: 

“Today, my will specifically directs its executors — as well as the trustees who will succeed them in administering my estate after the will is closed — not to sell any Berkshire shares. My will also absolves both the executors and the trustees from liability for maintaining what obviously will be an extreme concentration of assets.”  It has been speculated that 90% of Buffett’s wealth is in that stock. 

Such a clause in a will is unusual, though not unprecedented.  Trustees of trusts have a duty to diversify trust holdings, so that a setback for one asset doesn’t compromise the trust as a whole.  Having a concentrated position is great so long as that holding goes up in value, but should it go down the beneficiaries may complain that trustees failed to fulfill their duty.  Therefore a trustee will typically ask for specific instructions about any concentrated holding. 

Even with specific instructions to maintain a concentrated holding, lawsuits have been brought over the failure by the trustee to recognize that a change in circumstances should overrule what the trust creator thought years earlier, when the trust was funded.  Accordingly, the protection for the fiduciary will need to be detailed and specific. 

As a rule, one should give one’s trustee the broadest possible latitude to use investment skill and expertise to provide financial protection for the trust beneficiaries.  The exception to this rule typically comes into play when there are unique assets, such as a family business or unique real estate to be maintained.   

Buffett is bullish on Berkshire Hathaway’s future without him, but it is expected that the process of distributing his estate to charity may take 15 years after his death.  A lot can happen in that span of time. 

(August 2020) 

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