Trustee Compensation: How Much Are Trustees Paid?

What is a Trustee?

One that creates a Living Trust (or Irrevocable Trust, or other kind of Trust) is called the Settlor or Trustor.  The Beneficiary receives the benefit of the Trust and is said to hold the equitable title to the property.  The Trustee hold the legal title and is essentially the manager of the property for the benefit of the Beneficiary.  Most of the time when a couple or individual sets up a Revocable Living Trust, they will be the Settlor, Trustee, and the primary Beneficiaries.  In the case of a married couple, they will be considered co-trustees.  A co-trustee can usually act alone, or in conjunction with the other co-trustee, and takes over if the first Trustee dies or becomes incapacitated.

 

What is a Successor Trustee?

A Successor Trustee takes over as Trustee upon the occurrence of a specific event.  Usually this event is when the Trustee dies or loses capacity.  The successor Trustee is usually a trusted family member or friend of the family.  Sometimes the Successor Trustee will be a Professional Fiduciary Trustee.  This may be advantageous in a variety of situations including where the Trustor has no family, where the children Beneficiaries don’t get along, or where the Trust may continue for a long period of time after the Trustor death.

 

Trustee Compensation

The Trust document itself can detail how much the Trustee compensation will be, and how it is to be paid.  California Probate Code section 15680 says in part that if the Trust provides for compensation, then the Trustee is entitled to such compensation, and that the amount may be adjusted up or down by the court if the Trustee duties are substantially different from those contemplated when the trust was created, where the compensation in accordance with the terms of the trust would be inequitable or unreasonably low or high, or in extraordinary circumstances calling for equitable relief.  Further, the Probate Code dictates that any such raising or lowering of compensation will only be applied prospectively after the court order is made.

 

California Probate Code also says that if the Trust document does not specify what the Trustee compensation will be, then the Trustee is entitled to “reasonable compensation” (Probate Code section 15681).  Moreover, the court can order that the compensation continue for as long as the court determines proper in either situation – where the Trust document details compensation, and when the Trust document does not (Probate Code section 15682).

 

There are other rules and situations that affect Trustee compensation that will not be discussed here in this particular blog. 

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

Please feel free to give me a call and we can establish your Living Trust or other estate planning objectives today. 

 

Thanks for reading my blog.

 

William Daniel Powell

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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Published in Trustee Compensation
Sunday, 01 May 2016 23:11

What are Trustee Powers

Trustee Powers

 

 

Who is a Trustee?

 

A Trustee is the person or persons that manage the Trust property for the benefit of the Beneficiary.  The original Trustee is usually the person that establishes the Trust.  Married persons are usually co-trustees and may act together or independently.  The successor trustee usually takes over after some specific event such as the death of one or both Trustees, or the incapacity of the original Trustee. 

 

What are Trustee Powers?

 

What is the difference between a Trustee power, and a Trustee duty?  A duty must be performed by the Trustee, and a power is different in that a Trustee has discretion to exercise the power if he or she chooses.  California Probate Code section 16202 says: The grant of a power to a trustee, whether by the trust instrument, by statute, or by the court, does not in itself require or permit the exercise of the power. The exercise of a power by a trustee is subject to the trustee’s fiduciary duties.

 

A Trustee has the powers, without need for court order, that are granted by the Trust document, conferred by statute (unless limited in the Trust document), and the power to perform any act that a trustee would perform for the purposes of the trust under the standard of care provided in Section 16040 or 16047 of the California Probate Code (unless limited in the Trust document).

 

California Probate Code section 16220 thru 16249 addresses the specific powers of the Trustee and include (but are not limited to) such powers as:

•             the power to collect, hold, and retain trust property received from a settlor or any other person

•             the power to accept additions to the property of the trust from a settlor or any other person.

•             the power to continue or participate in the operation of any business or other enterprise that is part of the trust property and may effect incorporation, dissolution, or other change in the form of the organization of the business or enterprise

•             the power to acquire or dispose of property, for cash or on credit, at public or private sale, or by exchange.

 

For the drafter of a Trust document, confusing a duty with a power can create problems down the road.  If the drafter attempts to modify a Trustee duty by conferring a power to the Trustee is a mistake.  If a clause says that the Trustee has the power to hold property without diversification and does just that by holding a family held business or property, and that property goes down in value, can the beneficiaries surcharge the Trustee for the loss?  A Trustee will be financially liable for losses under certain circumstances, and must therefore take the job of Trustee seriously.  Recall Probate Code 16202 stated above that says: The grant of a power to a trustee, whether by the trust instrument, by statute, or by the court, does not in itself require or permit the exercise of the power. The exercise of a power by a trustee is subject to the trustee’s fiduciary duties.  The court would need to decide if the Trustee is liable under the circumstances.  Care must be taken to avoid situations such as these.

 

I would love to help you and your family.  Call me and we can create your Living Trust or other Estate Planning documents.

See lots of estate planning information on my website at: www.myestate-plan.com

 

Thanks for reading my blog.

William Daniel Powell

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information.

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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Published in Trustee Powers

Creating an Advance Healthcare Directive Shows Your Family You Love Them

 

 

A friend of mine relayed a story to me the other day.  He said his father told him “your mom doesn’t have the stomach for it, so you’ll have to decide whether to pull the plug on me.”  I thought to myself that this position is either not well thought out, or kind of chicken!  Likely just not well thought out and fairly innocent knowing his dad.  I think most people would fall into this category because most folks don’t like to think about their own demise, or just don’t think all the way though the scenario.  If you have been around a situation like this, it forces you to consider the impact on the survivors. 

 

 

In another situation I was in, a member of my family passed, and the hospital kept calling to ask if we would allow a retina donation.  Apparently time is of the essence, and they have to obtain the retinas fairly quickly or it is of no use.  I don’t fault the hospital, but consider what that does to the family that is grieving. 

 

 

If you answer these questions for your family in advance, you remove the stress, guilt, and potential fighting among family members.  Think about this – if you have an Advance Healthcare Directive filled out, then if the hard decisions come up, the call has already been made, and the family doesn’t have to stress about it and can say “that’s what dad wants” no matter what the decision is.

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

Give me a call today and see how affordable a quality Estate Plan that is 100% attorney advised, and 100% attorney prepared can be.   A proper Estate Plan usually contains a Revocable Living Trust, Pour-over Will, Durable Power of Attorney, Advance Healthcare Directive, Certificate of Trust (times 2), Summary of Trust, HIPPA Release, Funding help, and I include document review meeting, revisions, initial meeting, signing meeting, notary fees, and specific funding.

 

 

Thanks for reading my blog.

 

William Daniel Powell

 

619-980-2297

 

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information.

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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Friday, 15 April 2016 00:03

Avoiding a Trustee Conflict of Interest

Avoiding a Trustee Conflict of Interest

 

So as we discussed in another blog (see "Trustee Duties" here: trustee duties blog ), one of the Trustee duties is to avoid a conflict of interest, and to avoid “self-dealing”.  The California Probate Code lists statutory duties of the Trustee in Probate Code §§16001–16015 which includes (among others) a Duty of loyalty, to deal impartially with beneficiaries, also to avoid conflicts of interest and a duty not to undertake adverse interests.  So you may be asking yourself “what’s the big deal?”  Let’s use this example because it can come up quite often. The Settlor (usually a parent or parents) sets up an estate plan that includes a Revocable Living Trust with their two children as beneficiaries.  The oldest child is named as the Trustee because he or she is more responsible with money and is involved in the family business.  Upon the occurrence that the child becomes the Trustee, what is he or she to do about the activities of the family business if it is a Trust property?  If the normal duties are not addressed and properly dealt with, the Trustee will potentially be violating some of the California Probate Code statutory duties.  In taking a salary, contemplating a raise, even simply continuing the business by not selling it in order to diversify could be a breach of his or her duties as trustee.  This is not likely what the parents wanted when they established the Living Trust in the first place.   Perhaps the biggest worry for the Settlor is that a Trustee can be surcharged for loss of value of trust property if there was a breach of duty by the Trustee.  Therefore, a Trustee must be very careful, and the attorney must carefully draft the Living Trust to avoid potential pitfalls.

 

Careful drafting of the revocable trust and the asking of proper questions by a qualified attorney is paramount.  Likewise, it is important for the client to avoid only telling the attorney what the client thinks the attorney “needs to know”.  There are many things the average person thinks unimportant with respect to estate planning.  The more open a person is with their attorney, the better the result will be.  For this reason and others, I feel a “document system” like LegalZoom will never compete with an attorney on achieving the results you want, AND avoiding the unforeseen potential problems with answering a computer’s questions, then getting a document filled with “boilerplate language” and a lawsuit among beneficiaries down the road.

 

 

Let’s contemplate a slightly different scenario.  Maybe you don’t own a business, but instead just a home.  You’d like to allow one of the beneficiaries to live in the home for a time.  The standard rules would suggest that a Trustee would be breaching a duty in not making the property productive, or in “self-dealing” by taking advantage of a trust property.  The amount of rent may be disputed, and the issue of not diversifying could also be shown pretty easily. 

 

In a future blog we will address the difference between the conferring of Trustee powers and the modification of Trustee duties.  Care must be taken here also because sometimes the unwary drafter will convey a power instead of properly modifying a trustee duty.

 

See lots of estate planning information on my website at: www.myestate-plan.com

  

Thanks for reading.  I’m never too busy to get your estate plan in order and help address your particular situation.  Please give me a call and let’s start your Estate Plan today!  It is never too soon to plan.

 

William Daniel Powell

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

****Reminder****

Just like my website, nothing in this blog is intended as legal advice. If you need legal advice, contact an attorney licensed to practice in your jurisdiction. I am licensed to practice law in California.  Further, please remember that I speak in generalities in my blog (and on my website). There are so many different factors that can contribute and completely change the outcome that it would not be practical to discuss all of them here. This is why I speak in generalities. Thanks again for reading.

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information.

Saturday, 07 February 2015 00:00

Trust Administration Part 1

Trust Administration Part 1

 

So what is “Trust Administration”?

So what exactly does “trust administration” mean? Administering a trust is simply carrying on the tasks that the trust was established to perform. So next are probably thinking “who is it is performing these tasks?”

You can’t tell the Players without a Program!

Well, actually it is not that tough! In case you haven’t read some of the information on my website or some of my other blogs, let me explain quickly who the players are. There are three “titles”, or “people” involved in a trust. You do not need three individual people to fill these roles but for the purposes of this blog and simplicity this is how they will be described. The first person needed for a trust is the person who creates the trust. This person is called the Trustor, or Settlor of the trust. The Trustor funds the trust with certain property. The next role is that of the Trustee. The Trustee manages and administers the trust property according to the terms of the trust. The Trustee manages the trust for the benefit of the third person that we need to discuss. This third person is called the Beneficiary. There is somewhat of a legal fiction that occurs with the property that is transferred into the trust and that is that the title of the property is split into two forms. The first form is “legal title”. The second form is “equitable title”. The Trustee holds the legal title, and the beneficiary obtains the equitable title. This is at the heart of why a trust can be so useful. For example, a special needs trust is established to prevent a minor or an adult beneficiary that is receiving means tested Public benefits from losing those benefits due to a large payout of an inheritance or trust fund. Because the beneficiary does not hold the legal title and cannot control the distribution of funds from the trust (because that is the Trustee’s duty) they are not thought to possess the whole.

 

So what is a Trustee to Do?

So we know that the Trustee administers the trust for the benefit of the Beneficiary. What is the Trustees specific duties, and are there legal ramifications for a Trustees failure? A Trustees specific duties can come from a couple of sources. The first source is the trust itself. The second sources from the law (to put it in a general way). I won’t go into great detail here, however, suffice it to say that a Trustees duties are not to be taken lightly – and yes, there can be serious legal consequences for any number of failures by the Trustee.

Often times attorneys are asked to serve as Trustees. Most California estate planning attorneys will refuse to do so. One reason an estate planning attorney will refuse to serve is because of the California Probate Code as well as ethical considerations (if you would like to read some about it, check section 15642, 21380 and 21382 of the California Probate Code here http://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=PROB&tocTitle=+Probate+Code+-+PROB . It is not always completely prohibited, but in almost all circumstances it can produce more problems than it is worth to any of the parties involved. There can be ethical problems associated with acting as trustee for your client / Settlor such as the duty to be impartial, exposing other members of the law firm to liability, etc.

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

Please see my other blogs on “Trust Administration”, and “Trustee – duties”, and “Trustee – who can serve”.

Thanks for reading!

William Daniel Powell

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

****Reminder****

Just like my website, nothing in this blog is intended as legal advice. If you need legal advice, contact an attorney licensed to practice in your jurisdiction. I am licensed to practice law in California.  Further, please remember that I speak in generalities in my blog (and on my website). There are so many different factors that can contribute and completely change the outcome that it would not be practical to discuss all of them here. this is why I speak in generalities. Thanks again for reading.

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Published in Trust Administration

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