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Start →VI. TRUST ADMINISTRATION A. POWERS OF THE TRUSTEE 1. Sources of Trustee's Power The trustee can properly exercise only such powers a) as are i) expressly or ii) impliedly (a) conferred upon her. These include: (i) Powers i) expressly ii) conferred upon her (a) by the terms of the trust; (ii) Powers i) conferred upon her ii) by the terms of a statute or iii) by court decree; and (iii) Those powers i) that are (a) "necessary or (b) appropriate (i) to carry out the purposes of the trust and ii) are not forbidden (a) by the terms of the trust“ [Rest. 2d §186]. Note: The UTC confers broad powers on the trustee, a) including all powers i) that an unmarried individual has (a) over her own property. [UTC §815] (not other’s because trustee is the legal owner) 2. Joint Powers Where there are two or more trustees, (similar to general partnership) 1) the traditional position a) taken by the courts is that a) all trust powers had to be exercised i) by unanimous agreement. However, both the UTC and the Uniform Trustees' Powers Act ("UTPA'') provide that a) any power i) vested in three or more trustees (not Two or more) may be exercised i) by a majority of them. Nearly half the states now apply this ule. Of course, under either rule, if there are only two trustees, 1) they must act unanimously. Note that: any action a) taken in contravention of the jurisdiction's rule 1) is voidable. [UTC §703(a); UTPA §6(a)] contravene 1. to come into conflict with or infringe (rules, laws, etc) 2. to dispute or contradict (a statement, proposition, etc) [C16: from Late Latin contrāvenīre, from Latin contra- + venīre to come] 3. Personal Powers Trustees' powers generally a) attach i) to the office of trustee and b) are not personal i) to the occupants originally named to that office; c) i.e., powers usually pass to successor trustees. However, powers a) may be personal i) to a particular trustee and b) therefore may not pass to a successor trustee. This may be implied from a) the terms of the instrument and b) the surrounding circumstances, 1) but courts are generally reluctant a) to imply such a result. The mere fact that a) a power is discretionary 1) is not a sufficient basis a) to treat it as one i) personal (a) to the particular trustee named in the instrument. Courts will consider a) the purposes of the trust, b) the nature of the power, c) possible special qualifications i) that the originally appointed trustee may have, and d) any other factors i) that appear relevant. 4. Imperative and Discretionary Powers a. Imperative Powers A power is a) "imperative“ b) (sometimes called a "mandatory" power) 1) where the trust terms require the performance of a) a particular act 2) e.g., trustee is a) absolutely b) required to i) "sell all my real estate and ii) hold the proceeds in trust for my grandchildren (a) until they reach age 30." b. Discretionary Powers Most powers are discretionary 1) in the sense that a) the trustee i) may or ii) may not (a) perform a particular act, b) as she determines in her judgment i) to be most appropriate. Exercise of a discretionary power is subject to judicial review a) to prevent abuse of the trustee's discretion. To the extent that a) the exercise of such a power involves i) a business judgment rather than ii) a question (a) of law or (b) of interpretation, 1) a court will generally refuse to interfere. 1) Effect of Giving Trustee Absolute Discretion Where the terms of the trust provide that a) the trustee shall have i) "sole" or ii) "uncontrolled“ (a) discretion, 1) the trustee's power is still not a) wholly immune from review. Example: T bequeaths a large fund in trust for the comfortable support of specified relatives and, on their deaths, to charity. T's will provides that the trustee has "sole discretion to determine what amounts are payable and shall not be accountable to anyone." One of the beneficiaries is living in poverty and the trustee gives her $100 a month and accumulated income. When she asks for more income, the trustee cuts her off completely. The beneficiary can sue and receive more income by court order. The clause a) purporting to relieve the trustee i) of the legal duty (a) to account 1) is void, 2) insofar as it attempts a) to deprive a court of jurisdiction, 3) if a beneficiary can show that a) the trustee is not acting i) in good faith, or, b) in some jurisdictions i) that the trustee is acting (a) unreasonably. 2) Limitation -Trustee Must Exercise Some Judgment A court will also intervene 1) where a trustee has a) completely b) failed to exercise judgment i) with regard to a discretionary power. 5. Implied Powers 1) The following powers may be a) impliedly b) conferred upon the trustee i) at common law, 2) but are a) expressly b) conferred i) by the UTC. [See UTC §816] a. Power of Sale Where the trust terms a) neither confer b) nor withhold i) the power to sell trust property, 1) a power of sale is generally a) quite readily b) inferred i) by the courts. In deciding a) whether to infer a power of sale, 1) courts consider a) the language of the instrument, b) the character of the property, c) the purposes of the trust, and d) whether the property is i) to be transferred to the remaindermen (a) on termination of the trust. A power of sale may be a) more readily b) inferred i) in cases involving (a) personal property than ii) in cases involving (b) real property. 1) Directive Not to Sell Note that : the settlor can direct the trustee a) not to sell certain property i) transferred into the trust. 1) This directive is valid, and 2) the trustee cannot sell the property a) without a court order i) permitting the sale (a)on the grounds that (i) circumstances have changed so much (A) that not selling would put the trust corpus (I) in jeopardy (see V.D.2., supra). b. Power to Incur Expenses 1) Necessary and Ordinary Expenses It is generally implied that a) a trustee can incur expenses i) that are appropriate to carry out the trust purposes. 1) She can incur such expenses a) as are i) necessary and ii) ordinary b) in the management of the trust property and c) in keeping the property in repair, and 2) she can employ a) agents and b) advisors i) where this is prudent or ii) where she cannot reasonably be expected (a) to personally perform certain duties. 2) Improvements on Trust Property 1) Courts are less willing to infer a) the power to make improvements i) on trust property, 2) but, generally improvements can be made. 1) Improvements involve some element of a) investment discretion, and 2) one might consider a) in relation to the propriety i) of a particular improvement b) whether it will have the effect of i) concentrating investment (a) in a particular type of property ii) so as to be a violation of the trustee's duty (a) to diversify investments (see C.2.b.5), infra). c. Power to Lease Normally, a trustee has an implied power a) to lease trust property i) on such terms and ii) for such periods (a) as are reasonable (i) under the circumstances. d. No Implied Power to Borrow Money Under ordinary circumstances, 1) the trustee has no implied power a) to borrow money i) on the credit of the trust estate; 2) nor has she power a) to mortgage or b) otherwise encumber i) the trust property. However, in the well-drafted trust instrument, 1) the trustee is usually given the express power a) to borrow and b) mortgage. B. DUTIES OF THE TRUSTEE 1. Standard of Care Required of Trustee In administering the trust, 1) the trustee must exercise a) that degree of i) care, ii) skill, and iii) caution (a) that would be exercised (i) by a reasonably prudent person (A) holding her own property (B) in managing her own property. Care relates a) to her diligence and b) to the efforts she makes. Skill relates a) to the trustee's capabilities. Caution is the element of a) conservatism i) in administering the trust. 2. Duty of Loyalty -No Self-Dealing Absent a) court approval or b) contrary trust provision, 1) a trustee cannot enter into any transaction a) in which she is dealing i) with the trust ii) in her individual capacity. A trustee cannot a) "wear i) two hats," and b) in the same transaction i) represent both (a) her personal interest and (b) the interests of the trust estate. The concern a) addressed by the self-dealing rules 1) is not that (on the part of trustee) a) the trustee might i) act improperly or ii) take advantage of the situation. (unjust enrichment) 2) Rather, the concern is that (on the part of the property) a) the trustee's personal interest might affect her judgment (relating to the trust res) i) as to (a) whether, e.g., the price is a fair one, or (b) whether the asset should be sold at all. The possible effect (objective result, not subjective intent) a) on the trustee's judgment i) as to the wisdom of the action (to the trust res) 1) is what makes the self-dealing transaction a) improper. 1) A trustee owes a duty of a) undivided loyalty i) to the trust and ii) its beneficiaries, and 2) that loyalty might be tainted a) by her personal interest. a) No fraud or b) bad faith i) on the part of trustee 1) need be shown a) by the beneficiaries, and 2) no excuse can be offered a) by the trustee i) to justify the transaction. The self-dealing rules apply a) to all fiduciaries, including i) guardians and ii) personal representatives (a) of decedents' estates. a. Specific Self-Dealing Rules 1) Cannot Buy or Sell Trust Assets A trustee a) may not i) purchase any property (a) owned by the trust ii) even if she pays full value, and b) may not i) sell assets (a) to the trust ii) even if the price is a fair one. Example: The trust's assets include 2,000 shares of Google common stock. Determining that there is a need to diversify the trust's investments, the trustee purchases 1,000 shares of Google stock from the trust, paying the market value as determined by the NASDAQ quotes on the day of the purchase. This is improper self-dealing. 1) If the Google stock later goes up in value, the trust beneficiaries can demand that the trustee return the Google stock to the trust and take back her purchase price without interest. 2) (If the Google stock later goes down in value, the beneficiaries would ratify the transaction and waive the breach of trust, in effect telling the trustee, "thanks for getting rid of that lousy investment.") 2) Cannot Sell Assets from One Trust to Another Trust A trustee of one trust may not sell property a) to another trust i) of which it is also trustee. The concern of this rule is a) not self-dealing, b) but the possibility of i) favoring one trust (a) at the expense of another. Example: Trust A holds 3,000 shares of Acme common stock. Deciding to diversify the trust's investments, the trustee sells 1,000 shares of the stock to Trust B, of which she is also trustee. Even though the sale price is a fair one, this is a breach of trust-and note that the trustee is in an impossible position. 1) If the Acme stock rises in value, the beneficiaries of Trust A can sue for the lost profits. 2) If the stock declines in value, the beneficiaries of Trust B can sue for the resulting loss. 3) Cannot Borrow Trust Funds or Make Loans to Trust A trustee may not borrow trust funds, 1) no matter a) how fair the interest rate and b) how well-secured the loan. 1) A trustee may not loan her personal funds to the trust, and 2) any interest a) paid on such a loan must be returned to the trust. 4) Cannot Use Trust Assets to Secure Personal Loan A trustee may not use trust assets a) to secure a personal loan, and 2) the lender does not obtain a valid security interest against the trust res a) if she i) knew or ii) had reason to know (a) that the assets belonged to a trust. 5) Cannot Personally Gain Through Position as Trustee A trustee cannot gain any personal advantage a) from her position i) (other than compensation for serving as trustee). The trustee is accountable for any profit a) arising out of administration of the trust, 1) even if the profit did not result a) from a breach of trust. 6) Corporate Trustee Cannot Invest in Its Own Stock A corporate trustee cannot invest a) in its own stock b) as a trust investment. But it can retain its own stock 1) if such stock was aleady a part of the original trust res a) when the trust was established, 2) provided that retention of the stock meets the prudent investor standard. 7) Self-Employment Can Constitute Form of Prohibited Dealing Generally, self-employment is a form of prohibited self-dealing. However, extraordinary services a) to the trust b) on the part of the trustee 1) may entitle the trustee a) to additional compensation. This problem may arise 1) if the trustee (also an attorney) renders legal services a) to the trust b) that are outside the normal scope of her duties (as trustee) and c) for which additional compensation is fair and appropriate. b. Indirect Self-Dealing -Transactions with Relatives, Business Associates The above self-dealing rules apply a) to sales or loans i) to a trustee's (a) relative or (b) business associate, and ii) to a corporation (a) of which the trustee is (i) a director, (ii) officer, or (iii) principal shareholder. c. Duty to Account The duty a) to keep and b) render i) accounts, and c) to furnish information i) to the beneficiary or ii) his agent (a) at the beneficiary's request, 1) is one way of insuring that a) the trustee is meeting her obligation of loyalty. d. Good Faith Irrelevant a) Good faith i) on the trustee's part or b) benefit i) to the trust 1) is irrelevant. (For example, a trustee, a) acting in complete good faith and b) to help the trust, i) loans money to the trust and ii) takes a second mortgage on trust property. When the first mortgage is foreclosed, 1) it turns out that a) the trustee has made a profit. That profit must be turned over to the trust.) (similar to rule 16b) The policy reason a) for this harsh rule 1) is that a) personal interest i) on the part of the trustee opens the door i) to biased judgments (in the management of the trust res) and ii) thus to decisions (a) that may not be in the beneficiary's best interests. e. Duty Extends Equally to All Beneficiaries The duty of loyalty extends a) equally b) to all beneficiaries, 1) unless the trust instrument specifies otherwise. Dealing impartially a) with the beneficiaries 1) is more difficult 2) when the beneficiaries are entitled to a) successive benefits; b) e.g., i) A receives income for life, ii) B receives the trust corpus at A’s death. The trustee has a duty a) to A b) to see that i) the trust property produces income. She violates her duty a) to A 1) if the property is not income producing. On the other hand, to carry out her duty a) to B, 1) the trustee must insure that a) the trust property will not depreciate i) in value. f. Beneficiary's Rights in Case of Prohibited Transaction If a prohibited transaction takes place, 1) the beneficiary may: (i) set aside the transaction; (ii) recover the profit i) made by the trustee, ii) reduced by losses (a) arising out of the same transaction (see E.l.b., infra); or (iii) ratify the transaction i) (which would occur (a) when the transaction has turned out (i) to be advantageous to the trust). Thus, the trustee a) bears the risk of subsequent loss, and b) is also required i) to turn over any profit ii) where the dealings with the trust were advantageous to her. g. Restrictions on Self-Dealing Can Be Waived by Settlor The settlor of a trust can a) waive the rules i) prohibiting self-dealing b) by expressly conferring upon the trustee i) the power to act (a) in a dual capacity. If the self-dealing rules are waived a) by the settlor, 1) the trustee will not be held liable a) for her conduct 2) unless she a) has acted i) dishonestly or ii) in bad faith, or b) has abused her discretion. 3. Duty to Separate and Earmark Trust Property-No Commingling Trust assets must be kept a) physically separate i) from the trustee's personal assets and ii) from the assets of other trusts. (Statutory exceptions in most states permit a corporate fiduciary (i.e., bank) a) to hold property of trusts i) of which it is a trustee (a) in a common trust fund.) In addition, trust property must be titled a) in the trustee, i) as trustee for a specific trust. For example, money a) deposited in a bank account 1) must be deposited a) in the name of "T as trustee," and b) not in the name of T personally. If the trustee commingles trust assets a) with her own, 1) she faces several "heads I win, tails you lose" presumptions: a. Property Lost or Destroyed If a) the trustee commingles trust property i) with her own and b) some of the property is thereafter i) lost or ii) destroyed (e.g., casualty loss, or failure of a bank), 1) the presumption is a) that the property lost was the trustee's own, and b) that the property still on hand belongs to the trust. b. Assets that Rise or Decline in Value If a portion of the commingled assets increased in value, 1) it is presumed that a) those i) belonging to the trust increased in value; if a portion declined in value, 1) it is presumed that a) those i) belonging to the trustee, individually, declined in value. 4. Duty to Perform Personally (Prohibition on Delegation of Trust Duties) A trustee cannot delegate the entire administration of a trust. On the other hand, she may delegate acts a) that would be unreasonable i) to require her to perform personally (e.g., mailing letters). There is no clear-cut standard for judging a) when delegation is proper. Should you have a question a) that raises an issue of improper delegation, 1) discuss the facts a) in light of i) what a reasonably prudent person would do, ii) the degree of discretion delegated, and iii) whether someone with special skill is needed to do the act. a. Investment and Management Decisions Under the traditional rule, investment decisions could not be delegated. Under the Uniform Prudent Investor Act ("UPIA''), however, 1) a trustee may delegate a) investment and b) management i) functions that (a) a prudent trustee of comparable skills could (i) properly (ii) delegate under the circumstances. [UPIA §9] (For an in-depth discussion of delegating investment and management decisions, see C.2.c., infra.) b. Following Advice of Others The trustee can seek a) the advice of i) attorneys and ii) others b) on matters that i) she may not delegate. However, the trustee must make the decisions. If she appears to take advice a) without exercising her independent judgment, 1) she may be held liable a) on the theory that i) she improperly delegated her duties. c. Remedy If a trustee a) improperly b) limits or c) surrenders i) her control over trust property, 1) she becomes a guarantor of the fund. a) Her motives or b) the fact that i) the loss was (a) not directly (b) caused by the abdication of control 1) will not be considered by the court. The trustee is held liable a) for the amount of i) the actual loss to the trust. 5. Duty to Defend Trust from Attack Except a) when the trustee's examination reveals that i) an attack against the trust is well founded, 1) she has a duty a) to defend the trust. 6. Duty to Preserve Trust Property and Make It Productive There is a basic duty a) to preserve and b) protect i) the trust corpus. From this basic duty, there normally will be implied a) the duty i) to make the trust property productive, b) which includes the duty i) to invest. The duty to a) preserve and b) protect i) the corpus 1) requires that a) the trustee exercise reasonable care i) to do the following b) (and if she i) has held herself out (a) as having special skills or ii) has been selected (a) on account of such special skills, she will be held to exercise i) such skills): a. Collect all claims i) due the trust. b. i) Lease land or ii) manage it (a) so that it is productive; or iii) sell it (a) if it is not productive (b) (but this does not apply (i) if the trust instrument requires the trustee (A) to convey that land to a beneficiary). c. i) Record recordable documents (a) to protect title; ii) keep securities and funds (a) in safe places; iii) pay taxes on trust assets (a) to prevent liens thereon; and iv) secure insurance on trust properties. (a) It is proper for the trustee (i) to obtain insurance on trust property (A) including liability insurance (b) even though such insurance protects (i) her individually as well as (ii) the trust estate. d. i) Invest trust funds (a) within a reasonable period of time (i) following receipt thereof ii) (and continuously (a) review such investments and (b) sell and reinvest when required). iii) If the trustee fails to invest trust monies, (a) she is chargeable with the amount of income (i) that would normally accrue (A) from appropriate investments. ← End
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