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A Trustee has tremendous
responsibility and obligations in protecting and growing
the trust assets and paying income and assets to
the beneficiaries.The Trustee must follow the terms
of the Trust document in
accordance with directions of the Probate
Court and state
laws. A Trustee will need an
experience attorney to deal with the tax, asset planning
and Probate Court matters.
Here are some of the typical
duties to expect as a trustee:
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Fiduciary
Responsibility. As a trustee, you stand in a
“fiduciary” role with respect to the beneficiaries of
the trust. A "fiduciary" is a legal term for a person
who has obligations to care for other people's money.
As a fiduciary, you will be held to a very high
standard, meaning that you must pay even more
attention to the trust investments and disbursements
than you would for your own accounts.
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The Trust’s
Terms. The actual words of the
Trust document define the duties of
the Trustee and what powers the Trustee may exercise.
Read the trust itself carefully, both now and when any
questions arise. Because the Trust contains
many terms that have special legal
meaning which may differ from their normal usage,
you should always consult your attorney
concerning the interpretation of the
trust. The trust is your road map and
you must follow its directions, whether about when and
how to distribute income and principal or what reports
you need to make to beneficiaries and the court.
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Investment Standards.
Your investments must be prudent, meaning that you
cannot place money in speculative or risky investments
In addition, your investments must take into account
the interests of both current and future
beneficiaries. For instance, you may have a current
beneficiary who is entitled to income from the trust.
He or she would be best off in most cases if you
invested the trust funds to generate as much income as
possible. However, this may be detrimental to the
interest of later beneficiaries who would be happiest
if you invested for growth. In addition to balancing
the interests of the various beneficiaries, you must
consider their future financial needs. Does a trust
beneficiary anticipate buying a house or going to
school? Will she be depending on the trust income for
retirement in 15 years? All of these questions need to
be considered in determining an investment plan for
the trust. Only then can you start considering the
propriety of individual investments.
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Distributions. Where
you have discretion on whether or not to make
distributions to a beneficiary you need to evaluate
his current needs, his future needs, his other sources
of income, and your responsibilities to other
beneficiaries before making a decision. And all of
these considerations must be made in light of the size
of the trust. Often the most important role of a
trustee is the ability to say “no” and set limits on
the use of the trust assets. This can be difficult
when the need for current assistance is readily
apparent.
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Accounting. One of
your jobs as trustee is to keep track of all income
to, distributions from, and expenditures by the trust.
Generally, you must give an account of this
information to the beneficiaries on an annual basis,
though you need to check the terms of the trust to be
sure. In strict trust accounting, you must keep track
of and report on principal and income separately.
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Taxes. Depending on
whether the trust is revocable or irrevocable and
whether it is considered a “grantor” trust for tax
purposes, the trustee will have to file an annual tax
return and may have to pay taxes. In many cases, the
trust will act as a pass through with the income being
taxed to the beneficiary. In any event, if you keep
good records and turn this over to an accountant to
prepare, this should not be a big problem.
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Delegation. While
you cannot delegate your responsibility as trustee,
you can delegate all of the functions described above.
You can hire financial advisors to make investments,
accountants to handle taxes and bookkeeping for the
trust, and lawyers to advise you on questions of
interpretation. With such professional assistance, the
job of trustee need not be difficult. However, you
still need to communicate with those you hire and make
any discretionary decisions, such as when to make
distributions of principal from the trust to one or
more beneficiaries.
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Fees. Trustees are
entitled to reasonable fees for their services. Family
members often do not accept fees, though that can
depend on the work involved in a particular case, the
relationship of the family member, and whether the
family member trustee has been chosen due to his or
her professional expertise. Determining what is
reasonable can be difficult. Banks, trust companies,
and law firms typically charge a percentage of the
funds under management. Others may charge for their
time. In general, what’s reasonable depends on the
work involved, the amount of funds in the trust, other
expenses paid out by the trust, the professional
experience of the trustee, and the overall expenses
for administering the trust. For instance, if the
trustee has hired an outside firm for investment
purposes, that expense would argue for the trustee
taking a somewhat smaller fee. In any case, it makes
sense to consult with a professional experienced with
trust work who can guide you on what would be normal
fees considering all of the circumstances.

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