A short course in fiduciary duties - Westfair Communications

By Joseph A. Ruhl, Esq. | Regional President, Orange Bank & Trust | 914-422-3100 jruhl@orangebanktrust.com

Whether we”™re working with clients to manage their wealth or to plan and administer a trust to help clients preserve and protect assets, we take on the role of a fiduciary, which by law requires us to manage a client”™s money and property for their benefit, not ours. The “fiduciary standard” is the highest standard of care recognized by the law. A salesman is under no obligation to determine that his product is appropriate for a buyer, or that the buyer can afford it, or that the purchase is in the best interests of the buyer. A fiduciary, however, does have those obligations and more.

The fiduciary duties of every trustee

The fiduciary standard always has applied to trustees and their dealings with beneficiaries. The simplest way to explain it is that the interests of the beneficiaries must come first, ahead of the financial interests of the trustee. But that generalization can be expanded to cover more specific obligations or duties owed to beneficiaries.

Duty to administer a trust by its terms. Every trust agreement should make plain the purposes of the trust, as they provide the critical benchmarks for evaluating the trustee”™s actions.
Duty of skill and care. A high standard of performance is required, even if an amateur is named who has no prior experience as a trustee.
Duty to give notices. Notices may concern the legal rights of the trust beneficiaries, such as a power to make withdrawals, or they may cover such ministerial matters as designating a successor trustee or an agent to assist in trust administration.
Duty to furnish information and to communicate. The trustee must respond to requests from beneficiaries concerning the trust and its administration.
Duty to account. A written accounting of the assets, liabilities, receipts, and trust disbursements must be provided to the beneficiaries regularly.
Duty not to delegate. Although a trustee may employ professionals to assist in trust administration, the trustee may not blindly accept the advice of such persons. The trustee retains supervisory responsibility. Matters concerning the exercise of judgment and discretion generally cannot be delegated.
Duty of loyalty. Trusts must be administered solely for the benefit of the trust beneficiaries.
Duty to avoid conflict of interest. This is closely related to the duty of loyalty, and it may come up when a beneficiary is named as a co-trustee. Generally, the trustee should not engage in transactions with the trust unless the trust authorizes such activities.
Duty to segregate trust property. Trust assets must not be commingled with personal funds or other non-trust assets.
Duty of impartiality. The trustee must not favor one beneficiary over another unless the trust document directs that providing for a particular beneficiary is a principal purpose of the trust.
Duty to invest. Trust assets must not be left idle. In addition to making the trust investments, the trustee has a duty to diversify the investments and develop an asset allocation plan. This is a job for professional investors or corporate fiduciaries.
Duty to enforce and defend claims. Reasonable steps must be taken to protect the trust from adverse claims and enforce the rights of the trust and its beneficiaries.
Duty of confidentiality. Normally, the terms of a trust, the identity of its beneficiaries and their respective interests, and the nature of the trust assets cannot be disclosed to anyone except the beneficiaries and those who need such information to be able to administer the trust.

Add in corporate characteristics

Given this list of responsibilities, one quickly can see the value of corporate fiduciaries, organizations such as ours, dedicated to trust administration as a business. To be in the business of administering trusts and estates, trust companies and bank trust departments are granted “trust powers” by financial regulators. With these powers come regulatory supervision and the legal duties of every trustee.

Individuals may serve as trustees. Some talented individuals do so serve. But as a rule, a corporate trustee will be a better choice because a team of professionals will be responsible for trust management. The team approach provides:

better infrastructure support for accounting and recordkeeping;
broader investment sophistication;
permanence and availability””the whole team doesn”™t go on vacation at once;
judgment and experience.

Another very important advantage of a corporate trustee for many families is the ability to be impartial and to be recognized by all family members as a neutral decision-maker. A trust typically has current income beneficiaries and future or remainder beneficiaries. The interests of both types of beneficiaries must be balanced carefully. Conflicts need to be resolved by a trustee respected by all parties.

Orange Bank & Trust Company offers Private Banking, Trust Services and Investment Management”” part of our Wealth Management division. To learn more visit OrangeBankTrust.com.