Trust Administration

A trust is a legal entity created to hold and manage certain assets (the res) for the benefit of a person or people (the beneficiaries). The trustee is the person or entity in charge of administering the trust. The trustee has three primary duties to the beneficiaries: the duty of loyalty, the duty of care, and the duty of obedience.

The first duty is the duty of loyalty. A trustee must put the beneficiaries needs and interests before the trustee's own interests. This also means that a trustee must put all of their reasonable efforts towards advancing the beneficiaries interests. This prohibits things like self-dealing, theft, embezzlement, misappropriation, and similar wrongs.

The second duty is the duty of care. The duty of care means that the trustee must act as a reasonably prudent person in a similar situation. In real world situations, this means the trustee must act reasonably. A trustee cannot make badly-informed decisions, or make decisions based on information that a reasonable person would reject. For example, a trustee that knowingly invested the trust's assets into bad investments and ended up losing the entire investment could be liable for breaching the duty of care.

The third duty for the trustee is a duty to remain true to the trust documents. This is sometimes called the duty of obedience. It means that the trustee is to follow the documents as they are written, not as he or she thinks they should be written. If the trustee believes that changes should be made, they may speak with the trustor (if the trustor still lives), or seek appropriate court authority.

In navigating these duties, legal advice is critical. If you would like to contact Owens & Perkins regarding Trust Administration services, click here.