Trust and estate litigation is on the rise. The conflict can arise due to beneficiaries who feel they were entitled to more money or Trustees, who are supposed to act as fiduciaries with care, loyalty and impartiality, but often don’t.
Unfortunately, you cannot plan for every contingency. You hope that the Trustee that you picked will act as a proper fiduciary, will not steal the beneficiary’s money and will act in accordance with the Trust’s provisions. You also hope that beneficiaries will honor the wishes of the Grantor, even when the Trust provides for unequal distributions. Of course, hopes are often dashed.
I have seen multiple cases where Trustees have abused their power, have taken money from the Trust for themselves and then have refused to account to the beneficiaries. I have also seen cases where the Trustee was simply incompetent to handle the assets, and through no ill-will, have simply squandered the money instead of safeguarding it. In both types of these cases, the money is almost impossible to recover.
So what to do to protect your beneficiaries? Some opt for private Trust companies. But these usually charge anywhere from 0.5% to 1% of assets annually. Instead you may consider co-trustees, where one of the Trustees is a professional (an accountant, a financial advisor or a lawyer), who acts as a monitor of the main Trustee and may stop wrongdoing before it’s too late. Furthermore, you may consider appointing a Trust Protector, with specific powers of removing or changing Trustees if necessary. Finally, communication and sharing of information on a regular basis is crucial!
Disclaimer: This article only offers general information. Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions. As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.