Estate planning customers typically have a lot of questions about their commitments as a trustee of their living trust. Where the acting trustee is likewise the creator or “grantor” of the trust, the trustee normally has plenary power to act on behalf of the trust and may modify or even withdraw the trust in its whole.
Nevertheless, when a grantor passes away or ends up being not able to administer their trust, a successor trustee generally takes control of these commitments. It is after this point, when a successor trustee starts to administer the living trust, that concerns typically emerge with regard to the trustee’s duties.
For the a lot of part, a trustee administers a living trust by its written terms, which reveal the grantor’s intent. See Cal. Probate Code § § 16000, 21101 and 21102. This can be much more complex than it sounds. California courts are more easily permitting parties to present outside evidence of a grantor’s intentions, even where the language utilized in the trust is unambiguous and clear. The effect of this trend is that grantors should be a lot more cautious to consider whether their living trust describes their intents specifically, and then take the extra action of considering whether there suffices other proof to prove exactly what their intentions are with regard to the administration of their trust properties.
Trustee’s Standard of Care
A trustee’s legal standard of care is a progressing area of law. In general, California courts interpret a trustee’s standard to be very high. Nevertheless, a grantor might limit or broaden a trustee’s commitments through the language contained in the trust instrument itself. Area 16040 of the California Probate Code sets out the general standard of trustee care:
( a) The trustee will administer the trust with affordable care, ability, and care under the situations then dominating that a prudent individual acting in a like capacity would utilize in the conduct of an enterprise of like character and with like goals to accomplish the purposes of the trust as figured out from the trust instrument.
( b) The settlor may expand or restrict the basic offered in subdivision (a) by express arrangements in the trust instrument. A.
trustee is not responsible to a recipient for the trustee’s good faith reliance on these express arrangements.
( c) This area does not apply to investment and management functions governed by the Uniform Prudent Investor Act, post 2.5 (commencing with Section 16045).
Where a trustee has special abilities, he/she is needed to utilize those abilities with regard to administering a trust. In addition, a trustee may not hand over responsibilities that the trustee can reasonably be expected to perform. Some of the obligations that a trustee might delegate are financial investment, tax, legal and accounting services, which are types of services most trustees would not be expected to carry out.
Other Trustee Duties.
In numerous situations, a trustee will have a responsibility to offer an accounting and other details to the called beneficiaries of a living trust. See Cal. Probate Code § § 16060-61.5, § 16061.7, § 16062, and § 16064. As one might expect, a trustee also has a task of privacy. However, a trustee may have to reveal some info in order to administer the living trust. Maybe most significantly, a trustee needs to not put his/her interests above those of the trust or the beneficiaries, and ought to prevent disputes of interest with the trust and the recipients. This can be an especially complicated responsibility to meet for numerous trustees considering that they are frequently not just a trustee, however also one of several recipients called in the living trust. Unless the trust shows otherwise, such a trustee ought to not favor a particular recipient or class of recipients and avoid even the appearance of a conflict of interest.
A living trust will normally contain some language which offers the trustee discretionary powers– the power to utilize his or her own best judgment in certain scenarios. Even if a trust offers a trustee with sole, outright or unchecked discretion, California courts usually still need trustees to act within the recognized requirements of care and not in bad faith or with neglect to the express purposes of the living trust.
With regard to investing trust possessions, a trustee needs to make choices which are in the very best interest of the recipients, based on any restrictions offered in the trust. A trustee’s authority to handle investments should be set out in the trust instrument itself. Where the declaration of trust is unclear or silent, financial investment authority is also derived by statute, case law and the circumstances of each scenario. See Cal. Probate Code § 16200( a) and (b) and § 16047. Usually, a trustee has the obligation to invest trust possessions as a “prudent financier”, which is set out in the California Uniform Prudent Financier Act (the “Act”), unless the trust offers a greater or lesser standard of care:.
( a) Other than as supplied in neighborhood (b), a trustee who handles and invests trust assets owes a task to the beneficiaries of.
the trust to adhere to the sensible investor guideline.
( b) The settlor may broaden or restrict the prudent financier guideline by express provisions in the trust instrument. A trustee is not.
accountable to a beneficiary for the trustee’s good faith dependence on these express arrangements.
Cal. Probate Code § § 16045 through 16054.
For trustees who are managing financial investment assets, it is crucial to thoroughly evaluate the language of the Act for guidance and consult from a skilled estate preparation attorney if they do not fully comprehend their obligations.
You should consult with an appropriate professional Estate Planning or Probate Attorney if you have questions about a specific situation. Presented here are some of the common duties of trustees administering a living trust.