Tuesday, March 23, 2010

The Successor Trustee: Ignorance Is Not Bliss

Many people who establish Trusts prefer to nominate an individual, often a child or other family member, as a Successor Trustee of their Trust in the event of their death. The law imposes a number of duties and responsibilities on the Successor Trustee which if violated, even unknowingly and with the best intentions, will cause the Successor Trustee to be personally liable for any damages suffered by the Trust or its beneficiaries. For example, an individual Successor Trustee is often also a beneficiary of the Trust. A conflict of interest arises in that the individual on one hand is a Trustee with a number of duties and responsibilities to the Trust and its beneficiaries, and on the other hand is a beneficiary of the Trust with his or her own self-interests. The law allows this conflict of interest, but imposes on the Successor Trustee a duty of undivided loyalty to the Trust and its beneficiaries. In other words, the Successor Trustee must always put the interests of the Trust and it beneficiaries ahead of his or her own self-interests. The fact that a Successor Trustee is an individual and not aware of the duty of loyalty is no defense to an action for damages by one or more of the Trust beneficiaries.

At the law firm of Jeffrey Burr, we have many years of experience assisting and protecting individual Successor Trustees in the administration of a Trust after the death of a Trustor. One of our main objectives in doing so is to educate the Successor Trustee as to his or her many duties and responsibilities, such as the duty of loyalty, the duty to keep the Trust property separate (no commingling), the duty to preserve Trust property, the duty to keep Trust property productive, et cetera. Remember if you are an individual Successor Trustee, do not unwittingly put yourself in a position of possible personal liability, as lack of knowledge of your legal duties is no defense. In the case of a Successor Trustee, ignorance is not bliss.

-Attorney John R. Mugan

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