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Have You Chosen the Right Trustee?

Posted May 2, 2023 at 10:51 AM

Whether you are reviewing your existing trust or creating a new trust, you should understand the important role that a trustee plays not only in handling trust matters, but also in providing for and protecting your loved ones.

What is a trust?
A trust is an agreement between an owner of accounts and property (known as the trustmaker, grantor, or settlor) and another person (trustee) who agrees to manage the accounts and property for the benefit of a third party (beneficiary).  In most situations, there is a written document, called a trust agreement, that details the specific instructions and rules that govern the trust relationship.

What is a trustee?
A trustee is a trusted decision maker who is tasked with handling all matters that relate to your trust.  Depending on the type of trust, you could serve as the trustee in the beginning and appoint someone else to act as successor trustee only when you are unable to manage the trust, or you could select a separate person to act immediately as trustee and manage the trust.

What types of trustees are there?
When creating an estate plan, there are several types of trustees to consider.  An initial trustee is the decision maker that immediately starts managing the trust’s accounts and property.  You may choose to be the initial trustee if you create a revocable living trust.  However, for some types of irrevocable trusts, you will need to select someone else to be the initial trustee.

The successor trustee is the next in line to manage the trust.  This person may need to act because the initial trustee becomes incapacitated, dies, or resigns from their role.

You could choose to have one trustee handle the entire trust.  You could also choose to name a separate trustee for any subtrusts that you later create.  For example, you may name your children as the trustees for the subtrusts that are created for their benefit at your death.  In this instance, there may be several trustees acting once the subtrusts are created.  However, they will only be responsible for their separate trust and will have no control over other subtrusts that have their own trustees.

What does a trustee do?
Being a trustee involves many different important tasks, including the following:   

  • Managing accounts and property owned by the trust or subtrust.  Although the trust owns your accounts and property, a person must carry out most transactions.  If the trust owns an investment account, the trustee will watch the investments and request any adjustments that may be needed to ensure the best outcome for the trust and its beneficiaries.
  • Keeping the trust beneficiaries informed about the trust.  Although the trustee decides how trust accounts and property are used, they do so on behalf of, and in the best interests of, the trust beneficiaries.  A trustee is required to periodically inform the trust beneficiaries about the status of the trust: what the trust owns, how much the trust is worth, what income the trust has received, and what expenses the trust has paid.
  • Acting as a point person for trust matters.  If beneficiaries have questions about the trust, the trustee is usually best suited to answer them.  The trustee is also in charge of filing tax returns and participates in any lawsuits involving the trust.

What should you look for when selecting a trustee?
While it may be advantageous for a trustee to be financially savvy or have a background in tax, law, or finance, these are not required qualifications.  When considering potential trustees, we recommend looking for someone with following qualities:

  • Ability to ask for help when needed.  The trustee does not have to be an expert in every area of trust administration.  They can get assistance from financial advisors, tax preparers, and attorneys at the trust’s expense to fully carry out their responsibilities.
  • Be detail oriented.  Trust administration is a process with specific legal steps that must be taken.  The trustee will be asked to compile a list of everything that the trust owns and keep accurate records of income and expenses.  Being too general with this information can cause tension between the trustee and beneficiaries and could lead to legal action.
  • Be organized.  Depending on the property and assets the trust owns, the number of beneficiaries the trust has, and the trust distribution plan, there may be a lot of moving parts.  In addition to managing the trust, the trustee will need to make sure that they do not mix their personal affairs with those of the trust.
  • Have good communication skills.  Although the trustee has complete authority over the trust, they have the duty to act in the best interests of the beneficiaries.  It is important that the trustee clearly communicate with the beneficiaries, deliver necessary information, and be available to answer any questions that the beneficiaries may have in a timely manner.  A trustee must also be able to get along with the beneficiaries.
  • Follow rules.  State law, federal law, and the terms and instructions of the trust must be followed.  While a trust may have provisions that allow a trustee to use their discretion in some matters, there are other instances in which the trustee is required to do certain things a specific way.  The failure to comply with the rules can subject the trustee to potential civil and criminal penalties.

Who can you choose to be your trustee?
You have several options available to you depending on your circumstances and what matters most to you.

  • Family members.  It is common for people to select family members (spouse, child, parent, sibling, etc.) to be their trustees.  Family members likely have an intimate knowledge of your wishes and values, making trust administration easier if you want to leave decisions to your trustee’s discretion.  If your trustee is also a beneficiary, they could choose not to accept any compensation for acting as trustee because they will already be receiving something as a beneficiary of your trust.  However, allowing the beneficiary to be the trustee of your trust could jeopardize or limit protection of their inheritance.
  • Close friends.  Close friends likely understand your values and wishes, making any discretionary decisions easier; however, depending on your family dynamics, your close friends may not want to get involved in any conflicts that arise.  Also, if they are not trust beneficiaries, they may want to be compensated for the work they do, which could leave some beneficiaries feeling disgruntled that your trustee is getting money from the trust (even though the trustee is legally entitled to it).
  • Professional third party.  If protecting your beneficiaries’ inheritances is important to you, a professional trustee may offer additional protection.  Because administering trusts is their profession, they will likely understand every step that must be taken and have the tools to do so efficiently and accurately.  However, because trust administration is their job, they will require compensation for their service.  The fee for a professional trustee will likely be higher than what a family member or close friend would seek for compensation.

How MM&C Estate Planning Attorneys Can Help
We understand that you have an important decision ahead of you. We are here to guide you through the decision-making process and answer any questions you may have along the way. 

Schedule a Meeting
Call us to schedule an appointment so we can help you check this item off your to-do list. Let us help you choose the best course of action to update your estate plan.  If you have questions about selecting a trustee or would like to discuss other ways we can safeguard you, your loved ones, and your life savings when you can no longer manage your affairs, call us to schedule an appointment.

We are more than happy to meet with you by phone, video conference, or in-person.

The attorneys in Miller, Miller & Canby’s Estates & Trusts practice provide extensive estate and legacy planning, asset protection planning, retirement planning, and business planning services to individuals and businesses. To learn more about Miller, Miller & Canby’s Estates & Trusts practice click here.