Trustee

Trustee (or the holding of a trusteeship) is a legal term which, in its broadest sense, is a synonym for anyone in a position of trust and so can refer to any individual who holds property, authority, or a position of trust or responsibility for the benefit of another. A trustee can also be a person who is allowed to do certain tasks but not able to gain income.^[1] Although in the strictest sense of the term a trustee is the holder of property on behalf of a beneficiary,^[1] the more expansive sense encompasses persons who serve, for example, on the board of trustees of an institution that operates for a charity, for the benefit of the general public, or a person in the local government.

For other uses of "trustee", "trusty", and related terms, see Trustee (disambiguation).

A trust can be set up either to benefit particular persons or for any charitable purposes (but not generally for non-charitable purposes): typical examples are a will trust for the testator's children and family, a pension trust (to confer benefits on employees and their families) and a charitable trust. In all cases, the trustee may be a person or company, whether or not they are a prospective beneficiary.

Carry out the expressed terms of the trust instrument. Trustees are bound to act in accordance with the terms of the trusts upon which the trustee holds trust property, and commit a breach of trust by departing from the terms of the trust.^[4] However, a trustee may act otherwise than in accordance with the terms of the trust if all beneficiaries, being sui juris and together absolutely entitled, direct the trustee to do so (or so consent). If any question arises as to the constriction of the provisions of the trust, the trustee must approach the court for determination of the question.

[3]

Defend the trust

Prudently invest trust assets (in , this is mandated by the Trustee Act 1925 (NSW)^[5]).

New South Wales

Be impartial among beneficiaries: the trustee must act impartially between individual beneficiaries as well as between different classes of beneficiaries.

[6]

Account for actions and keep beneficiaries informed: these include a duty to inform beneficiaries as to their entitlements under the trust and other matters concerning the trust. Trustees do not have priority right to trust documents; it is a personal right and cannot be assigned^[8] The right to seek disclosure of trust documents is an aspect of the court's inherent jurisdiction to supervise the administration of trusts.^[9] As trustees as not under a duty to disclose their reasoning in applying a trust power (unless the trust instrument requires otherwise), there is no duty to disclose any documents dealing with the decision making promise.^[10] Protection of confidentiality has been described as 'one of the most important limitations on the right to disclose of trust documents'. 'Memoranda or letter of wishes' do not necessarily need to be disclosed to a beneficiary if they are of a number of potential beneficiaries.

[7]

Be loyal

Not delegate

Not profit; however, may charge fees for services to the Trust

[11]

Not be in a conflict of interest position

Administer in the best interest of the beneficiaries

Trustees^[2] have certain duties (some of which are fiduciary). These include the duty to:

The modern interpretation of fiduciary duty requires the consideration of environmental, social, and governance (ESG) factors as these are long-term investment value drivers.^[12] When evaluating whether or not an institutional investor has delivered on its fiduciary duties, both the outcomes achieved and the process followed are of critical importance.

The terms of the instrument that creates the trust may narrow or expand these duties—but in most instances, they cannot be eliminated completely. Corporate trustees, typically trust departments at large banks, often have very narrow duties, limited to those the trust indenture explicitly defines.

A trustee carries the fiduciary responsibility and liability to use the trust assets according to the provisions of the trust instrument (and often regardless of their own or the beneficiaries' wishes). The trustee may find himself liable to claimants, prospective beneficiaries, or third parties. If a trustee incurs a liability (for example, in litigation, for taxes, or under the terms of a lease) in excess of the trust property they hold, then they may find themselves personally liable for the excess.

Trustees are generally held to a "prudent person" standard in regard to meeting their fiduciary responsibilities, though investment, legal, and other professionals can, in some jurisdictions, be held to a higher standard commensurate with their higher expertise.^[13]-Trustees can be paid for their time and trouble in performing their duties only if the trust specifically provides for payment. It is common for lawyers to draft will trusts so as to permit such payment, and to take office accordingly: this may be an unnecessary expense for small estates.

In an exception to the duties outlined above, sabbatical officers of students' unions who are also trustees of these organisations they work for do have the right to a salary (and hence profit from their being a trustee). This is an exception explicitly granted in the 1993 act^[14]

Bankruptcy trustee[edit]

In the United States, when a consumer or business files for bankruptcy all property belonging to the filer becomes property of a newly created entity, the "bankruptcy estate". (See 11 U.S.C. § 541.) For all bankruptcies (consumer or business) filed under Chapter 7, 12 or 13 of Title 11 of the United States Code (the Bankruptcy Code), a trustee (the "trustee in bankruptcy" or TIB) is appointed by the United States Trustee, an officer of the Department of Justice that is charged with ensuring the integrity of the bankruptcy system and with representatives in each court, to manage the property of the bankruptcy estate, including bringing actions to avoid pre-bankruptcy transfers of property. In bankruptcies filed under Chapter 11, the debtor continues to manage the property of the bankruptcy estate, as "debtor in possession", subject to replacement for cause with a trustee.

Chapter 7 trustees in bankruptcy are chosen by the United States Trustee from a panel, and are known as panel trustees. Every judicial district has a permanent Chapter 13 trustee, known as a "standing trustee". As cases under Chapter 12 (for family farmers or fishermen) are filed fairly infrequently, the United States Trustee usually makes trustee appointments in such cases on an ad hoc basis.

Trustee model of representation

Fiduciary

Fontaine, C. , LLM, CLU, ChFC (2004) Fundamentals of Estate Planning. The American College Press.