When you take over as a Trustee for the first time, you will undoubtedly have a lengthy list of questions—not just about your role but, more importantly, where you should start your new journey.

To help make your job easier, you should carefully consider the following:

If You Are a New Trustee, Start Here …

1. Read the trust instrument — Sometimes, it is easy to overlook the obvious. The trust document is the best source for determining its intent and your responsibilities. It also helps determine what the beneficiaries are supposed to receive.
2. Make a list — To help everything make sense, write down and separate what in the document is listed as discretionary and what responsibilities are considered mandatory. Keeping these things straight will help you do your job better. 
3. Understand why the trust was created — Understanding why the trust was created in the first place will help you fulfill your role as Trustee. There are many reasons for using trusts, and there was probably more than one reason for creating this trust.
4. Work with the drafting attorney early and often — Getting the drafting attorney of the trust document to help, even if you must pay for their time, can be invaluable to you later. If you choose to use an attorney who did not draft the document, and that attorney is still available, someone like a beneficiary who later hires that attorney, or even calls that attorney as a witness, may have a lot of information you really need but that you do not know. This information could seriously damage you in a lawsuit. Of course, you are not required to retain the attorney who drafted the trust, and you may not want to hire that attorney. Just be aware that you, as a successor Trustee, do not have all of the information regarding the formation of this trust. If you hire the drafting attorney, that attorney does not have to, and in fact cannot, provide information to a beneficiary because the attorney represents the Trustee, and attorney-client privilege applies.
5. Ask yourself if you have improper motives? You should scrutinize your motives and be prepared to prove that your motives are not improper. While that can be difficult to prove, you can offer evidence of what your motives are. When you act, or choose not to act, make sure that you have a good reason, and put your reasons in writing.
6. Find out if you are a beneficiary or a remainder beneficiary of the trust — If you are a remainder beneficiary, a breach of fiduciary lawsuit could be problematic if the claim is made that you are not completely providing what you should provide. That is especially true if it seems you are trying to gain more when the Trustor or existing beneficiary dies.
7. You must remain impartial — Favoring one beneficiary (including yourself) over another is dangerous, even if the document allows it. Favoring one beneficiary over another is favoritism, and favoritism never plays well before a court or a jury!
8. Create a file for the trust and keep it well-documented. What should be in the file? Keep copies of notes from regular meetings with the beneficiaries. Include the dates, and preferably the length of the meetings. It is best to note the subjects discussed and the decisions made. Keep up with the “to-do” list and make sure it is performed on time.

A Trustee that is removed for cause because they did not follow all their requirements is already on the path toward being successfully sued for not doing something.  Our purpose is to prevent lawsuits from occurring in the first place. 

By providing these instructions, we are trying to help the Trustee avoid potential liability.

As always, you should consult with an attorney for any matters related to your loved one’s trust and how you should act when the time comes for you to step in as the Trustee. Doing so creates peace of mind and ensures everything is done correctly.

Call Leigh Hilton PLLC Today!!

Having a competent attorney in your corner will help you and your family navigate the often overwhelming waters of protecting everything you own and everyone you love. That is our job, and we think we do it better than anyone else. Call Leigh Hilton PLLC so that we can help ensure you and your family are taken care of in the best way possible.

Leigh Hilton PLLC wants to be your first call every time for any estate planning need. We look forward to serving you.