1. Introduction
A trust is a legal entity that can “own” assets. A trust agreement document can look much like a will and include instructions for whom the trust creator wants to handle his or her final affairs and whom will receive the assets after death. There are different kinds of trusts: testamentary (created in a will after someone dies); irrevocable (usually cannot be changed); and revocable living trusts.
Today, many people use a revocable living trust instead of a will in their estate plan because it seeks to avoid court interference at death (probate) and at incapacity. It is also flexible. As long as the trust creator is alive and competent, he or she can change the trust document, add or remove assets, even cancel it.
Even though the purpose varies from trust to trust, most trusts are set up in the same way, with the same structure. That structure is as follows: a person or entity, called a “trustor”or “settlor” transfers title in property to B, called a trustee. B, the trustee, holds the property for the benefit of C, called the beneficiary or beneficiaries. In other words, one person gives his or her property to a second person and the second person holds and/or manages the property for the benefit of a third person or persons.
The trustee of a revocable trust generally has no duty to report or account to the trust beneficiaries and that the beneficiaries have no right to receive such accountings.[1] However, once the trust creator (trustor or settlor) dies or becomes incapacitated, the beneficiaries of a revocable trust have enforceable legal rights.
2. Rights to receive information from the trustee
In California, a trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration.[2] Under most circumstances, on reasonable request by a beneficiary, the trustee shall report to the beneficiary by providing requested information to the beneficiary relating to the administration of the trust relevant to the beneficiary's interest.[3] Moreover, a trustee is under a continuing duty to keep accurate dealings with the trust property and to render an accounting to a beneficiary on demand. [4]
3. Trustees have fiduciary duties to beneficiaries
A trustee is often referred to as the “personal representative” of the trust estate. Under California law, the personal representative is an officer of the court and occupies a fiduciary relation to all parties having an interest in the trust estate.[5] [6] Virtually any abuse of office shown to breach the personal representative’s statutory duty to use “ordinary care and diligence” in managing and controlling the estate exposes the trustee to surcharge liability for resulting loss or damage to persons interested in the estate. [7] A breach of duty may consist of an affirmative act or a “failure to act.” [8]
Along with the duty to use ordinary care and diligence, the most fundamental duty of a trustee is the duty of loyalty, which requires that the trust be administered solely in the interest of the beneficiaries.[9] The duty of loyalty requires a trustee to subordinate his or her interests to those of the beneficiaries in every regard.
4. Beneficiaries can recover damages against trustees
If a trustee breaches a fiduciary duty to a beneficiary, the trustee is chargeable with (1) any loss or depreciation in value of the trust resulting from the breach of duty, with interest; (2) any profit made by the trustee through the breach of duty, with interest; and/or (3) any profit that would have accrued to the trust if the loss of profit is the result of the breach of duty.[10] If the trustee is liable for interest, he or she is liable for the greater of the following amounts: (1) the amount of interest that accrues at the legal rate on judgments; or (2) the amount of interest actually received.[11]
Footnotes
1. Probate Code § 16064
2. Probate Code § 16060
3. Probate Code § 16061
4. Estate of De Laveaga (1958) 50 Cal. 2d 480, 487
5. Estate of Sanders (1985) 40 Cal. 3d 607, 616
6. Estate of Seifert (2005) 128 Cal. App. 4th 64, 68
7. Probate Code § 9600(a)
8. Probate Code § 9600(b)
9. Uzyel v. Kadisha (2010) 188 Cal. App. 4th 866, 905-906
10. Probate Code § 9601(a)
11. Probate Code § 9602(a)
Legal advice cannot be offered without specific knowledge of your particular case and all relevant facts. The information above is a general discussion of the topic described. It should not be relied upon for your specific situation and you are hereby advised to consult your own attorney before taking specific action in any situation.
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