TRUSTS AND TRUSTEES LEGAL BACKGROUND in .NET

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433 TRUSTS AND TRUSTEES LEGAL BACKGROUND
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4 By the court The court will appoint a trustee when a trust may fail for lack of a trustee, when a trustee refuses to serve or has died, or when a vacancy from any cause exists and no other means have been provided for ling the vacancy 5 By implication of law 6 By self-perpetuating boards When vacancies occur, they are led by the remaining members of the board 7 By the exercise of a power of appointment The instrument creating the trust may give the remaining trustees, bene ciaries, or any other person the power to appoint a trustee to ll a vacancy Speci c instructions should be included in the instrument as to the situation establishing a vacancy, the persons who may be appointed, and the manner of making the appointment (iii) Acceptance or Disclaimer Acceptance of an appointment as trustee may be made by positive statement, by qualifying as executor if the appointment is by will, by the acceptance of property of the trust, or by other acts from which acceptance may be presumed An individual may refuse to accept an appointment as a trustee and should execute and deliver a disclaimer expressing rejection of the appointment (iv) Resignation of Trustee According to the Restatement of the Law of Trusts 2d (1 Trusts ALI 234): A trustee who has accepted the trust cannot resign except (a) with the permission of a proper court; or (b) in accordance with the terms of the trust; or (c) with the consent of all the bene ciaries, if they have capacity to give such consent (v) Removal of Trustee The court has power to remove a trustee and appoint a successor under certain circumstances Scott cites, among others, the following six grounds upon which trustees have been removed: 1 2 3 4 5 6 Failure to exercise discretion Self-dealing Failure to keep proper accounts, and mingling with trustee s own funds Incompetency and neglect of duty Conversion of trust property Refusal to obey orders of the court5
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(c) POWERS AND DUTIES OF TRUSTEES The powers of trustees are obtained both from the provisions and implications of the instrument creating the trust and from the general laws pertaining to the trust relationship The instrument may either expand or restrict the general powers, except that it may not relieve the trustee from liability for gross negligence, bad faith, or dishonesty The powers of a trustee may be either (1) imperative or mandatory or (2) permissive or discretionary In other words, they must either be exercised de nitely and positively within a given length of time or upon the occurrence of some contingency, or they may be exercised at the discretion of the trustee (i) General Powers powers, are: The nine general powers of a trustee, which include all necessary incidental
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1 To take and retain possession of the trust property 2 To invest trust funds so as to yield a fair income
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A W Scott, The Law of Trusts, Fourth Edition (Little Brown, 1987), 1995 Supplement
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ESTATES AND TRUSTS
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sell and reinvest when necessary sell and convey real estate when necessary to carry out the provisions of the trust release real estate so that it may earn income pay for repairs, taxes, and other such expenses in connection with trust property sue or defend suits when necessary make contracts that are necessary to carry out the purposes of the trust pay over and distribute the trust property to those entitled to it
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The trustee secures possession of the trust property and holds title in his own name All debtors should be noti ed of the change in ownership of claims against them in order to hold them directly liable to the trustee All debts due the trust estate should be collected promptly Trust property must be kept separate from the property of anyone else The trustee will be liable for any loss occurring as a result of their mingling of funds or other property An exception is usually made when a trust company is acting as trustee; it may deposit cash in trust funds with itself or may mingle various trust funds and deposit same with designated depositories (ii) Duties The 14 duties of the trustee are outlined by Scott as follows:
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1 To administer the trust as long as he continues as trustee 2 To administer the trust solely in the interest of the bene ciary (the duty of loyalty as a duciary) 3 Not to delegate to others the performance of acts which the trustee sought personally to perform 4 To keep clear and accurate accounts 5 To give to bene ciaries upon their request complete and accurate information as to the administration of the trust 6 To exercise such care and skill as a man of ordinary prudence would exercise in dealing with his own property; and if the trustee possesses greater skill than that of an ordinary prudent man, he must exercise the skill he has 7 To take reasonable steps to secure control of trust property and to keep control of it 8 To use care and skill to preserve the trust property The standard of care and skill is that of a man of ordinary prudence 9 To take reasonable steps to realize on claims which he holds in trust and to defend claims of third persons against the trust estate 10 To keep the trust property separate from his own property and separate from property held upon other trusts; and to designate trust property as property of the trust 11 To refrain in ordinary circumstances from lending trust money without security 12 To invest trust funds so that they will be productive of income 13 To pay the net income of the trust to the bene ciary at reasonable intervals; and if there are two or more bene ciaries he must deal with them impartially 14 Where there are several trustees, it is the duty of each of them, unless otherwise provided by the trust instrument, to participate in the administration of the trust, and each trustee must use reasonable care to prevent the others from committing a breach of trust6 (d) PROPER TRUST INVESTMENTS The trustee is under a duty to invest funds in such a way as to receive an income without improperly risking the loss of the principal The only general rule as to investment is that the trustee is under a duty to make such investments as a prudent man (the prudent man rule or Massachusetts rule) would make of his own property, having primarily
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