If you are one of the many people who choose to include a trust as part of your overall estate plan, one of the most important decisions you will make when creating that trust is your choice of Trustee. In fact, your choice of Trustee could be the key factor in determining whether your trust succeeds or fails. To help you better understand the importance of choosing the right Trustee, a Fargo trust attorney at German Law Group explains how a Trustee could cause your trust to fail.
A trust is a legal relationship where property is held by one party for the benefit of another party. The person who creates a trust is referred to as the “Settlor”, “Trustor” or “Grantor.” The Settlor transfers property to a Trustee, appointed by the Settlor. The Trustee holds that property for the trust’s beneficiaries, also named by the Settlor. The overall job of a Trustee is to protect and invest trust assets and to administer the trust terms found in the trust agreement.
Trustee Responsibilities and Duties
A Settlor may appoint anyone he/she wishes as the Trustee. That Trustee has a fiduciary duty to the trust itself and to the beneficiaries named in the trust. As such, the Trustee must treat the trust assets with more care and invest with more caution than he/she would with his/her own assets. In addition, a Trustee is legally required to follow all the terms of the trust agreement unless a term is impossible, illegal, or unconscionable. A Trustee has an enormous amount of power over the assets held in a trust as well as considerable authority over how and when they are distributed to the trust beneficiaries.
How Can a Trustee Damage a Trust?
Given the important role a Trustee plays in the administration of a trust, and the power a Trustee has over the trust assets, it should come as no surprise that there are numerous things a Trustee could do to damage the trust and/or cause the trust to fail, such as:
- Not following the trust terms. Unless a term is illegal, impossible, or unconscionable, the Trustee is legally obligated to follow the terms as created by the Settlor. Failing or refusing to abide by the terms of the trust will almost certainly thwart the trust purpose as stated by the Settlor of the trust.
- Mismanaging the trust assets. A Trustee is in a fiduciary position, meaning that the Trustee must handle the trust assets with the utmost care. When investing trust assets, the “prudent investor standard” must be used by a Trustee. The prudent investor standard requires the Trustee to only invest in risk-averse options and to consider retention of the principal to be the most important consideration when making investments. If a Trustee is careless with the trust assets, the trust value could actually decrease instead of increase which clearly damages the trust.
- Engaging in self-dealing. “Self-dealing” by a Trustee can do enormous damage to a trust. Self-dealing basically means that the Trustee cannot manage the trust assets or invest those assets with the intention, or goal, of benefiting himself/herself. This is not to say that a Trustee can never benefit from a trust. In fact, sometimes a Trustee is also a beneficiary of a trust; however, the Trustee cannot make decisions with his/her own self-interest at the heart of those decisions.
- Creating a conflict of interest. In the event that a conflict of interest arises between the Trustee and the trust purpose, the trust terms or the beneficiaries of the trust could be irreversibly damaged.
The key to avoiding damage to your trust is to work with an experienced attorney when you create your trust and when you choose a Trustee.
Contact a Trust Attorney
Please join us for an upcoming FREE seminar. If you have additional questions or concerns about the role of Trustee or about trusts generally, contact a trust attorney at German Law Group by calling 701-738-0060 to schedule an appointment.