Lawyer Monthly - November 2022

to comply with their responsibilities, also known as a breach of their fiduciary duties, opens the successor trustee up to liability from the beneficiaries and even potential litigation, which can stall the estate distribution process. Some common breaches include self-dealing by the trustee using trust assets for their own benefit, the trustee causing damage to the trust property, or the trustee failing to be impartial toward the beneficiaries by favouring one over another. Many breaches made by a successor trustee are due to their own financial circumstances, neglect of their responsibilities, or sibling rivalry or bad blood between family members. I can speak first-hand as to the frustrations a beneficiary faces when a trustee who is not up to the task of managing a trust is put in charge. When I was 10 years old, my father passed away and left my half-sister in charge of his trust as the successor trustee. To put it simply, she never appreciated that our dad was with my mom or that she and I are sisters. The feelings she harboured towards me manifested in her actions as trustee. While she made the appropriate distributions from the trust for herself and my other two half-siblings, she refused to do anything in regard to the assets left to me in the trust. As a minor, there was not a lot that I could do and I wrote off what should have been my inheritance until nearly a decade later when I was contacted by a third party who had information about my inheritance. Of course, I contacted the successor trustee, my half-sister, to let her know that I had information about my inheritance and that I would appreciate her following up on the matter. She refused. She refused over and over again. I was merely a beneficiary and had no legal standing to pursue my inheritance, since the only person with that power was the successor trustee. It was not until I brought a case against my half-sister for breach of her fiduciary duties 14 years after my dad’s death that she was moved to make sure I received my inheritance. Although the case did not get very far and only involved a handful of hearings, I wholeheartedly believe that if it had been left up to my half-sister, I would not have received anything my dad intended to be mine. This experience is the reason I became an estate planning and probate attorney. It is my passion to help educate individuals, whether they are potential clients who need a trust, a successor trustee who is trying to navigate the waters of their fiduciary duties, a beneficiary who wants to make sure their interests in an estate are protected, or even someone who has been left to handle a probate of the estate of a loved one. will make – aside from deciding who is to receive what assets from the estate – is deciding who will be the successor trustee(s). The successor trustee will be the individual or individuals in charge of the trust when you are no longer able to manage the trust due to capacity reasons or death. The purpose of naming a successor trustee is to ensure that the instruction manual that is your revocable trust has someone capable of making sure your wishes are followed down to the to the very last period of the trust document itself and the laws surrounding trusts. It is the trustee’s responsibility to hold, manage and protect the trust property for the benefit of those who are to receive from it (known as the ‘beneficiaries’). As a result, it is imperative that the individual named by you as successor trustee be a person you can trust. Within most revocable trusts, there is reference to the general powers or duties of the trustee which are to be followed to carry out the purposes of the trust created under the trust documents in addition those conferred on trustees by law. Pursuant to the California Probate Code Sections 16000 thru 16015, trustees owe to the trust and beneficiaries the following duties: • Duty of loyalty; • Duty to avoid conflicts of interest; • Duty of impartiality; • Duty of disclosure; • Duty not to delegate; • Duty to keep trust assets separate; and • Duty to enforce or defend trust claims. Trustees are accountable to the beneficiaries for their actions. Any failure 16 LAWYERMONTHLY SEPTEMBER 2022 I can speak first-hand as to the frustrations a beneficiary faces when a trustee who is not up to the task of managing a trust is put in charge.

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