What is a Trustee? 8 Trustee Power Explained Super Simply!

If you're stepping into the world of estate planning, understanding the pivotal role of a trustee is like discovering the key to a treasure trove.
What is a Trustee

Picture this: a guardian of your legacy, a safeguard of your wishes, and a beacon of financial stewardship.

Who is this unsung hero of estate planning? It’s the trustee!

If you’re stepping into the world of estate planning, understanding the pivotal role of a trustee is like discovering the key to a treasure trove.

In this captivating blog post, we’ll unravel the mysteries surrounding trustees, empowering you with the knowledge to navigate the intricate landscape of estate planning like a pro. Get ready to embark on a thrilling journey into the heart of what it truly means to be a trustee!

What is a Trustee in Estate Planning?

In estate planning, a trustee is a special person who is given the responsibility to take care of and manage someone’s important belongings, money, and property, called a trust.

 It’s similar to being the caretaker of a treasure chest filled with valuable items. The trustee’s main job is to make sure that the things in the trust are kept safe and used wisely, following the instructions and wishes of the person who created the trust. The person who created the trust is known as the Grantor or Settlor (the Grantor’s or Settlor’s).

They have an important role in making sure that everything is handled properly, and assets are distributed to the right people when the time comes. Think of the trustee as a trustworthy guardian who looks after someone’s valuable possessions and makes sure everything is done according to the person’s wishes. 

Most of the time the Grantor (or Settlor, as the terms can be used interchangeably) will act as trustee while they are willing and able to. Once the Grantor in no longer able or willing to be the trustee, the responsibility will pass to a successor trustee.

Who are the people involved with a living trust?

In a revocable living trust, there are typically three main parties involved:

Grantor/Trustor/Settlor: This is the person who creates the trust and transfers their assets into it. The grantor has the authority to amend, revoke, or modify the trust during their lifetime. They are often the individual who initially benefits from the trust’s assets.

Trustee: The trustee is the person or entity responsible for managing and administering the trust according to the terms set forth by the grantor. In most cases, the grantor also serves as the initial trustee, retaining control over the assets of the trust. However, the trust document designates successor trustees to take over the role if the grantor becomes incapacitated or passes away.

Beneficiaries: Beneficiaries are the individuals or entities designated by the grantor to receive the benefits and distributions from the trust. Initially, the grantor is typically the primary beneficiary, allowing them to enjoy the trust’s assets during their lifetime. After the grantor’s passing or incapacity, the trust may provide for the distribution of assets to other beneficiaries, such as family members, friends, or charitable organizations.

It’s worth noting that in some cases, the roles of the grantor and trustee may be fulfilled by the same individual, especially in revocable living trusts where the grantor retains control and management over the assets of the trust. As the grantor’s circumstances change or upon their passing, the trustee’s role may shift to a successor trustee, ensuring the smooth continuation of trust administration and distribution of the grantor’s assets to the designated beneficiaries.

What Powers Does a Trustee Have – Trustee Duties & Responsibilities

So, what does a Trustee do? 

Trustees have important powers and duties entrusted to them to carry out their role effectively.

Let’s explore some of the powers and responsibilities that come with being a trustee:

1.      Managing Trust Assets: The trustee’s main responsibility is to manage the assets held within the trust. This involves safeguarding and investing the assets wisely to ensure their growth and protection for the beneficiaries.

2.      Following the Trust’s Terms: The trustee must carefully read and understand the instructions outlined in the trust document. They are legally obligated to follow these terms in administering the trust.

3.      Fiduciary Duty: As a trustee, they have a fiduciary duty, which means they must act in the best interests of the beneficiaries. This requires making decisions and taking actions that prioritize the beneficiaries’ welfare and protect their rights.

4.      Prudent Investment: Trustees are generally expected to make informed and prudent investment decisions. This involves exercising reasonable care, skill, and caution when investing trust assets to ensure they are well diversified and have a reasonable chance of growth.

5.      Record-Keeping: It is crucial for the trustee to maintain accurate and detailed records of all trust transactions, including income, expenses, distributions, and investments. Good record-keeping helps demonstrate transparency and accountability in managing the trust.

6.      Communication with Beneficiaries: The trustee has an essential responsibility to keep beneficiaries informed about the trust’s activities. They should provide regular updates, accountings, and tax reports to keep beneficiaries aware of the trust’s financial status and distributions.

7.      Distribution of Trust Assets: Depending on the terms of the trust, the trustee may have the authority to distribute assets to beneficiaries. This includes following the specified guidelines and making distributions in a fair and timely manner.

8.      Seeking Professional Advice: In complex situations or when legal, tax, or investment expertise is required, it is advisable for the trustee to seek professional advice. Engaging the services of attorneys, accountants, or financial advisors can help fulfill their duties and make informed decisions.

It’s important to note that the specific powers and responsibilities of a trustee can vary based on the terms of the trust and applicable laws. Thoroughly understanding the trust document and seeking legal guidance is crucial if the trustee has any questions or uncertainties regarding their role.

How to Choose the Right Trustee

Choosing a trustee for a living trust is a crucial decision that requires careful consideration. Here are some factors to keep in mind when selecting a trust trustee:

  • Trustworthiness and Integrity: Look for someone who is trustworthy, responsible, and has the integrity to handle the duties of a trustee. They should be capable of making decisions in the best interests of the beneficiaries and fulfilling their fiduciary obligations.
  • Competence and Financial Acumen: Consider the individual’s level of financial knowledge and ability to manage assets effectively. The trustee should have a good understanding of investments, accounting, record-keeping, and tax implications related to trust administration.
  • Availability and Longevity: Assess the potential trustee’s availability and willingness to take on the responsibilities of a trustee. Consider their own personal circumstances, such as age, health, and other commitments, to ensure they can dedicate the necessary time and effort to manage the trust effectively. Additionally, think about the potential longevity of the trustee to ensure continuity in trust administration.
  • Communication and Interpersonal Skills: A trustee should possess good communication skills to effectively interact with beneficiaries and other parties involved. They should be able to explain complex financial matters and keep beneficiaries informed about the trust’s activities.
  • Family Dynamics and Objectivity: Consider the dynamics among family members and potential conflicts of interest that may arise. If family harmony is a concern, choosing an impartial trustee, such as a professional trustee or a trusted third party, can help ensure unbiased decision-making.
  • Professional Expertise: Depending on the complexity of the trust and its assets, you may opt for a professional trustee, such as a financial institution, an estate attorney, or an accountant. Professional trustees have experience in trust administration and can offer specialized expertise to manage the trust effectively.
  • Successor Trustee: It is essential to designate one or more successor trustees in case the primary trustee is unable or unwilling to continue serving. Consider the same factors when choosing successor trustees to ensure a smooth transition in trust administration.

 

It’s important to note that there is no one-size-fits-all approach, and the choice of trustee will depend on your specific circumstances and preferences. It’s advisable to consult with an attorney or financial advisor specializing in estate planning to help you navigate the selection process and make an informed decision based on your unique needs.

Trustee Powers

Can a Trustee Be Personally Liable?

In California, a trustee can be liable personally for certain actions or failures to act while administering a trust. However, it’s important to note that the trustee’s personal liability is generally limited to their own misconduct or breaches of their fiduciary duties.

Under the California Probate Code, a trustee has a duty to administer the trust in good faith and in accordance with the trust’s terms and applicable law. If a trustee fails to fulfill their fiduciary obligations or acts negligently, they may be held liable personally for any resulting harm or losses suffered by the beneficiary or the trust.

Examples of situations where a trustee may have personal liability:

Self-Dealing: If a trustee engages in self-dealing, such as using trust assets for personal gain or benefiting themselves at the expense of the beneficiaries, they can be held liable personally. Note: The Grantor can have their revocable living trust include a provision that allows trustees to engage in self-dealing.

Negligence or Mismanagement: If a trustee fails to exercise reasonable care, skill, or diligence in managing the trust assets, leading to financial losses or harm to the beneficiaries, they may be held personally liable.

Breach of Fiduciary Duty: A trustee owes a fiduciary duty to act in the best interests of the beneficiaries. If a trustee breaches this duty by acting in a manner that harms the beneficiaries or fails to fulfill their obligations, they may be personally liable for resulting damages.

It’s important to note that a trustee may also be protected from personal liability in certain situations. For example, if the trust document includes provisions that indemnify the trustee for actions taken in good faith, or if the trustee obtains appropriate insurance coverage, it can help mitigate their personal liability.

Trustee FAQ's

In simple terms, the trustor creates the trust and puts the assets into it, the trustee manages those assets according to the trust’s terms, and the executor manages and distributes a deceased person’s assets according to their will.

The terms “beneficiary” and “trustee” refer to two different roles within a trust, a legal arrangement often used in estate planning.

The beneficiary is who the trust is designed to benefit, while the trustee is the person or legal entity is responsible for ensuring the trust is managed according to the trustor’s wishes for the benefit of the beneficiary.

In most cases, a trustee does not have the power to remove a beneficiary from a trust.

A trust is a legal document created by a trustor (or grantor), and the trustor is the one who will invest assets and determines the beneficiaries of the trust. Once the trust is created, the trustee’s job is to manage the trust assets according to the terms set by the trustor.

If a trustee attempts to remove a beneficiary, it could be seen as overstepping their role unless the power to remove a beneficiary has been expressly granted in the terms of the trust, which is unusual.

If the trustee has concerns about a beneficiary, they need to seek legal guidance or possibly request a court to intervene.

Yes, a trustee can also be a beneficiary of a trust.

There’s no rule that prevents someone from serving in both roles. In fact, this is quite common, especially in family trusts. For instance, a parent may establish a trust and name their adult child as both a trustee and a beneficiary.

However, it’s important to note that even when the trustee is also a beneficiary, they still have a legal duty to act in the best interests of all beneficiaries, not just their own interests. This is known as fiduciary duty. If a trustee fails to uphold this duty, they can be held legally responsible.

A successor trustee is a person or entity (like a bank or a trust company) that takes over management of a trust when the original trustee can no longer fulfill their duties. This could happen for various reasons, such as if the original trustee passes away, becomes incapacitated, resigns, or is removed.

Their role is essentially the same as the original trustee. They are responsible for managing the assets of the trust according to the trust’s terms and in the interest of the beneficiaries.

The details regarding who will be the successor to the trustee and when and how they will take over should be outlined in the trust document.

Determining if a grantor (or trustor) of a trust is incapacitated can involve various steps, and the exact process might be defined in the trust document itself.

Typically, the trust document will contain a definition of incapacity and describe the procedure for determining whether the grantor meets this definition. This often involves a medical determination made by one or more physicians. The doctors would generally need to examine the grantor and certify that, in their professional opinion, the grantor is mentally incapable of managing their own affairs.

Once incapacity is determined according to the trust terms, a successor trustee can step in to manage the trust. This is a crucial reason why it’s important to name someone who is reliable.

 

If a grantor (also known as a settlor or trustor) recovers after being declared incapacitated, what happens next largely depends on the terms outlined in the trust agreement.

In many cases, the trust document will specify the process for determining when the grantor has regained capacity and can reassume control over the trust. Just as a physician or team of physicians may be required to certify the grantor’s incapacity, a similar process might be used to certify their recovery.

If the grantor regains capacity and is properly certified, the grantor can resume their role.

A trustee in a trust is responsible for managing, protecting, and distributing the assets of the trust according to the terms set out by the trust’s creator (the grantor).

This can include investing assets, paying bills, filing tax returns, and making distributions to beneficiaries. The trustee acts in the best interest of the beneficiaries, upholding a duty of care, loyalty, and impartiality.

The trustee of a trust is not considered the legal owner of the trust’s assets in the traditional sense.

Instead, the trustee holds legal title to the trust property, but they do so for the benefit of the trust beneficiaries, who hold equitable title.

This is a fundamental concept of trust law: the separation of legal and equitable title.

In other words, while the trustee has the legal authority to manage and control the assets, they do so not for their own benefit, but for the beneficiaries. The trustee has a fiduciary duty to act in the best interest of the beneficiaries when managing the property of the trust.

The creator of the trust (known as the grantor, trustor, or settlor) typically determines who the beneficiaries will be, and may also be a trustee or beneficiary, depending on how the trust is set up. As always, it’s recommended to consult with a legal professional when dealing with trusts and estate planning.

The trustee of a trust can be an individual/family member, multiple individuals, or a corporate entity such as a bank or trust company. Typically, the person who creates the trust (the grantor) may act as the initial trustee, particularly in a revocable living trust. Alternatively, the grantor might choose a trusted family member, friend, professional trustee, or corporate trustee. The chosen trustee should be reliable, competent, and capable of managing the trust property responsibly.

Hiring a Trust company, or a corporate trustee, should be considered in certain instances. Though you’ll pay a fee for the service, it can be well worth it, if you anticipate any contention amongst beneficiaries. A Trust company will be able to take a stern, matter-of-fact approach to your estate, saying no when necessary

A trustee is a person or organization that is given the responsibility of keeping records managing property or assets for someone else’s benefit. This property is held in a trust. The trustee must follow the rules of the trust, acting in the best interests of the person or people who are set to receive the benefits (the beneficiaries), and not for their own gain.

Both an executor and a trustee have important but different roles in estate management and both have significant powers and responsibilities, albeit in different contexts.

An executor is responsible for settling an individual’s estate after their death, according to the terms of their will. Alternatively, if the decedent does not have a will the executor or personal representative will appear before the probate court to follow the rules of intestate succession. Their powers are usually related to settling debts, filing tax returns, paying taxes on tax filings, distributing assets to beneficiaries, and overall, winding up the deceased’s affairs.

On the other hand, a trustee manages a trust according to the terms set by the trust’s creator, for the benefit of the trust’s beneficiaries. This can be during the creator’s lifetime and/or after their death, depending on the type of trust.

Therefore, it’s not so much a question of who has “more power,” but rather the context in which they exercise their responsibilities. The power of each is limited to the duties and terms laid out in the trust agreement or the will, respectively.

Whether the executor and trustee should be the same person depends on various factors. If the estate and trust affairs are straightforward, having the same person can simplify matters.

However, for larger or more complex estates, separate roles might distribute responsibility more effectively. Consider the person’s relationship with beneficiaries and the potential for conflict, especially if they’re also a beneficiary. 

In California, a trustee is held accountable in several ways:

1.     Fiduciary Duties: A trustee has a legal and fiduciary responsibility. They are required to act in the best interest of the beneficiaries. This includes duties of loyalty, care, and full disclosure. They must manage the trust property responsibly, keep accurate records, and avoid any conflicts of interest.

2.     Legal Action: If a trustee fails to fulfill their duties, beneficiaries can take legal action. They can ask the court to compel the trustee to provide an accounting, to fulfill their duties, or even to remove the trustee if necessary.

3.     Accounting Requirement: In California, trustees are required to provide a periodic accounting to beneficiaries. This accounting must detail the trust holdings, liabilities, receipts, and disbursements, including the trustee’s compensation.

Remember, the rules governing trusts can be complex, and this is a broad overview.

A trustee, as a fiduciary, owes a high level of duty to the beneficiaries of the trust. This fiduciary duty encompasses several key responsibilities:

1.     Duty of Loyalty: A trustee must act solely in the best interests of the beneficiaries when managing the property of the trust. They should avoid self-dealing and conflicts of interest.

2.     Duty of Care: A trustee must manage the assets of the trust with a high standard of care, using good judgment and skill. They must be diligent and prudent in managing the trust’s affairs.

3.     Duty of Impartiality: A trustee must act fairly and impartially when dealing with beneficiaries, especially if there are multiple beneficiaries with different interests.

4.     Duty to Account and Inform: Trustees must keep accurate records and regularly provide the beneficiaries with information about the trust, including any significant actions taken, the assets and liabilities of the trust, and any changes to the trust.

5.     Duty to Follow Trust Terms and Law: The trustee is obliged to follow the terms of the trust and the applicable law in administering the trust.

Violations of these duties can lead to legal consequences, including potential removal and personal liability for any harm caused to the asset’s of the trust.

Being a trustee of an estate means you’re responsible for managing a trust that has been created as part of an individual’s estate plan. Unlike an executor who manages a person’s will after their death, a trustee’s role can begin either during the lifetime or after the death of the person who created the trust (known as the grantor or settlor), depending on the type of trust.

As a trustee, you’re tasked with safeguarding and managing the trust property for the benefit of the trust’s beneficiaries according to the terms of the trust document. This involves duties like investing assets wisely, distributing trust assets to beneficiaries as the trust document dictates, and keeping records.

You also have a fiduciary duty to act in the best interests of the beneficiaries, which means you must manage the trust property responsibly and avoid conflicts of interest. The role can require significant time and effort, and it comes with a high level of legal responsibility.

Here is the legal definition for a trustee:

A trustee is a third party who is authorized by a settlor to execute and manage the assets of a trust. A trustee holds the title of the trust asset.  A trustee is a requirement of an express trust along with trust propertytrust intent, and definite beneficiaries

In Conclusion

Being a trustee comes with many responsibilities that involve managing assets and investments, handling tax payments, distributing funds correctly, and much more.

When selecting the right individual or company to serve as the trustee of an estate plan, it is important to research their qualifications, make sure they have the necessary knowledge, resources and experience, and consider how well they will be able to serve in this capacity for years to come. These are some of the same traits you would look for in the agent you use in your durable power of attorney.

All trustees should take careful notes of all related activities and should not hesitate to seek help from a professional when needed. If grantors modify or change their estate plans frequently, the trustee must be notified promptly.

Questions about being a trustee or having an estate plan?

Contact Opelon LLP today! We offer full-service legal support that helps grantors establish trust arrangements that benefit them now and for generations to come.

Our knowledgeable team can help you better understand your rights and remedies under California law so you can make the best decisions about your trusteeship duties.

Start by talking with an experienced estate planning attorney who can advise you on finding the right person for your unique needs:

Contact us today and start putting together a secure plan for tomorrow!

Matt Odgers

Matt Odgers

Attorney Matthew W. Odgers is a partner and co-founder of Opelon LLP, a firm based in San Diego, California that focuses its energy on Estate Planning, Trust Administration, and Probate

Table of Contents

Related Posts

Lets Chat!

Get In touch


How can we help you?

(760) 278-1116

Call for a Free Consultation

Address 1901 Camino Vida Roble, STE 112, Carlsbad, CA 92008

Email Info@opelon.com

Skip to content