9 minute readA Guide for Moving from Successor Trustee to Trustee of a Trust
Parents typically bestow the role of a successor trustee upon individual(s) deemed capable of managing and preserving the legacy they wish to leave to the people they love.
However, when that individual is you (their child), the dynamics of this responsibility take on a unique dimension. As the appointed successor trustee of your parent's trust, you are responsible for upholding your parent's wishes, navigating legal obligations, and making sound financial decisions on behalf of the trust beneficiaries.
The complexity deepens when we consider the web of relationships within a trust. Typically, the beneficiaries of a trust could encompass a diverse array of individuals, including you, your siblings, other family members, friends, and even charitable organizations. This intricate network of beneficiaries adds another layer of responsibility for you as the child trustee assuming this vital position.
You must navigate the legal and financial aspects of trust management and delicately balance the interests and expectations of a diverse group of stakeholders. You, the child-turned-successor trustee, are thrown into the realm of familial dynamics, making decisions that may carry lasting implications for the relationships and legacies of those involved.
What is the difference between a Trustee and Successor Trustee?
Typically, in a living trust, your parents are the trustees.
When parents act as trustees for their living trust, they assume the role of managing and administering their trust. As trustees, they have the authority to control and make decisions regarding the assets and provisions of the trust during their lifetime.
This arrangement gives your parents control over their property and financial affairs while benefiting from the flexibility and protections for their heirs offered by a trust structure. By acting as their own trustees, parents maintain autonomy over their trust assets and can appoint successor trustees who will take over the trust administration upon their incapacity or passing.
A successor trustee is someone designated to take over as trustee if your parents cannot continue. When you move from successor trustee to trustee, you step into the same role with the same responsibilities and powers as your parents. As successor trustee, you ensure the smooth continuation of trust management and carry out Mom and Dad's intentions outlined within their trust.
What is "Fiduciary Responsibility," and How Does it Affect You?
As the child entrusted with the role of trustee within your parent's trust, you hold a position of fiduciary responsibility. Fiduciary responsibility refers to the legal obligation to act in the best interests of the trust's beneficiaries, including yourself and other family members.
As a trustee, you have the legal expectation to manage the trust assets while making prudent and good-faith decisions when distributing or investing. Prudent and good-faith decisions mean you must prioritize the interests of the beneficiaries over your own and avoid any conflicts of interest.
Failure to fulfill your fiduciary duty can have serious legal consequences. Suppose you breach your fiduciary obligations by not acting in the beneficiaries' best interests or mismanaging the trust assets, using them for personal gain. In that case, you may be liable for any resulting financial losses.
Legal actions such as lawsuits or removal as the trustee can be initiated against you, and you may be required to reimburse the trust for any damage caused.
Understanding and complying with the legal responsibilities associated with being a trustee is crucial in ensuring the proper administration of your parents' trust, and a way to protect yourself and the interests of the beneficiaries involved.
Seeking legal guidance can be beneficial in navigating the complexities of fiduciary responsibilities and ensuring compliance with applicable laws and regulations.
Items to Consider Before Becoming Trustee of Your Parent's Trust
Understand the Trust
You must first understand the trust you are responsible for. A Trust is a legal document outlining how assets will be managed and distributed to the beneficiaries. You should review the trust document carefully and understand its terms and provisions.
Locate all Important Documents
As the Trustee of your parents' trust, you are responsible for gathering the necessary documents upon their passing.
Locating these documents before your parents' passing can help avoid the task of searching for them during an already challenging time.
Begin by locating their last will and testament and any trust documents or living wills they may have created. Look for their birth certificates, marriage certificates, and social security cards required for various legal processes. Find their bank account statements, investment records, and insurance policies to assess their financial assets.
Collect property deeds, vehicle titles, and other ownership documents related to their assets. You must remember to gather any outstanding bills, tax returns, and estate planning documents they may have prepared. Remember, this task may require patience and thoroughness. So, take your time to ensure you have gathered all the essential documents to carry out their wishes and manage their estate appropriately.
Speak to Family Members
With Mom and Dad, tell family members about your critical role when your parents become incapacitated or pass away.
Your Guide for When You Become Trustee
Follow the Trust's Terms
As a trustee your legal obligation is to follow the terms of your parents’ trust. You must act in the best interests of the beneficiaries they named and manage the assets following the trust's instructions or have a financial advisor manage them. You must follow the distribution requirements and any other rules outlined in the trust document.
Keep Accurate Records
One of your duties as a trustee is to keep accurate records of the trust's transactions and activities. These records include tracking all income, expenses, and distributions made from the trust. You should also keep copies of all essential documents related to the trust, such as tax returns, account statements, and legal agreements.
Communicate with Beneficiaries
You have a duty to communicate with the trust's beneficiaries and keep them informed about the trust's activities. This communication includes working with your financial advisor, providing regular updates on the trust's performance, notifying them of any changes to the trust's terms or investments, and answering any questions they may have. Effective communication is key to maintaining trust and transparency with the beneficiaries.
Act Impartially
As a trustee, you must act impartially and avoid conflicts of interest. Impartiality means you cannot favor one beneficiary over another or use the trust's assets for your own personal gain. You must make decisions based on what is best for all beneficiaries, not just yourself or a selected few.
Seek Professional Advice
Being a trustee can be complex, and there may be times when you need professional advice. Do not hesitate to seek guidance from attorneys, accountants, or financial advisors with trust experience. They can provide valuable insights and help you make informed decisions that are in the best interests of the beneficiaries.
Manage Investments Prudently
One of the primary responsibilities of a trustee is to manage the trust's investments prudently. This means investing the assets consistent with the trust's objectives and risk tolerance. You should clearly understand the trust's investment goals and risk tolerance, and work with a financial advisor to develop a diversified investment strategy that meets those goals.
Ensure Tax Compliance
Trusts are subject to various tax laws and regulations, and as a trustee, you have a responsibility to ensure that the trust complies with these laws. These responsibilities include filing tax returns and paying any taxes owed on behalf of the trust. It is important to work with a tax professional familiar with the tax laws applicable to trusts, ensuring the trust complies.
Be Prepared for Unexpected Challenges
As a trustee, you may face unexpected challenges along the way, such as legal disputes, beneficiary disagreements, or changes in tax laws. It's essential to be prepared for these challenges and to seek professional advice when needed. You may need to work with an attorney, accountant, or financial advisor to navigate these challenges and ensure managing the trust in the best interests of the beneficiaries.
Consider Hiring a Co-Trustee
If you're feeling overwhelmed or uncertain about your responsibilities as a trustee, you may want to consider hiring a professional corporate co-trustee. A corporate trustee is a company who specializes in the administration of trusts and handling requests and disagreements among beneficiaries.
A corporate co-trustee can help share the responsibilities and ensure effective trust management. This can be especially helpful when managing a large or complex trust.
It is also important to note that a corporate trustee is immortal, meaning they can never die. This immortality is helpful for trusts managed across multiple generations.
Your financial advisor or estate attorney can help recommend a corporate co-trustee.
Document Your Decisions
As a trustee, you may need to make crucial decisions on behalf of the trust, such as investment or distribution decisions. It's essential to document these decisions and the rationale behind them. This documentation can help protect you from potential legal disputes or challenges with beneficiaries. Record all decisions and their reasons, and consult with professional advisors when needed.
Be Proactive in Your Role
As a trustee, it's important to be proactive in your role. Do not wait for problems to arise before taking action. Regularly review the trust and its investment with your financial advisor, communicate with the beneficiaries, and seek professional advice when needed. By being proactive, you can help prevent problems before they occur and ensure an effective management of the trust.
Maintain Confidentiality
As a trustee, you may have access to sensitive financial and personal information about the beneficiaries. Maintaining confidentiality and only sharing this information on a need-to-know basis is vital. Confidentiality can help protect beneficiary privacy and prevent any potential legal or financial consequences.
Be Prepared for the Termination of the Trust
At some point, the trust may come to an end. Termination can happen for various reasons, such as when the beneficiaries reach a certain age or the trust's objectives have been met. As a trustee, it's important to be prepared for the termination of the trust and to ensure that the beneficiaries receive the assets they are entitled to.
Stay Organized
Finally, it's essential to stay organized as a trustee. Keep all documents related to the trust in a safe and secure location, and make sure you can access them easily when needed. Create a system for tracking important dates, such as tax filing deadlines and distribution requirements, ensuring you do not miss any important deadlines.
Being a trustee is a significant responsibility, and there are many things you need to know to manage a trust effectively. Remember to seek professional advice when needed, communicate regularly with the beneficiaries, and act in the best interests of all the beneficiaries. With these strategies in place, you can manage the trust with confidence and integrity.
Sources:
Successor Trustee- Definition Duties & FAQ, Trust & Will, N/D, https://trustandwill.com/learn/successor-trustee
Responsibility of a Trustee, Rochester Law Canter, N/D, https://rochesterlawcenter.com/responsibilities-of-a-trustee/
When the Trustee and beneficiaries are siblings, everyone needs to know the ground rules to stay on good terms!, The Karp Law Firm, N/D, https://karplaw.com/when-the-trustee-and-beneficiaries-are-siblings-everyone-needs-to-know-the-ground-rules-to-stay-on-good-terms/
When a family member serves as a trustee, "fair and honest is not enough.", SNA (Special Needs Alliance, October 2012 - Vol. 6, Issue 13, https://www.specialneedsalliance.org/the-voice/when-a-family-member-serves-as-trustee-fair-and-honest-is-not-enough-2/
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