Last week I was fortunate enough to attend an industry conference held on the subject of trust and estate administration, as well as touching on some changes to Oregon trust and probate law. Most of the attendees were estate planning attorneys, a number of whom I have worked with over the years. As a trust professional (now licensed financial advisor) I regularly attend such conferences to stay abreast of industry trends, proposed legislative changes, and modifications to trust & tax code.
No matter what the theme of the meeting is, however, the one persistent take-away is that serving as a fiduciary is both difficult and dangerous. It sometimes takes listening to an expert talking about their specialty and the potential problems associated with it to remember that possible liabilities of many different hues can haunt the Trustee, regardless if the person serving is a family member or a trust company.
While it seems clear that courts tend to hold non-professional Trustees to a lesser standard than they would a professional if controversy develops during the course of administration, the non-professional Trustee still owes the beneficiaries the same fundamental duties (the duty of loyalty, duty to act impartially, duty against self-dealing, duty to inform, and so forth)… and the non-professional Trustee still must faithfully execute the trust agreement, adhere to State law, and in Oregon, follow the Uniform Prudent Investor Act and the Uniform Principal and Income Act.
All this can be daunting. If other circumstances present challenges to the Trustee by way of issues arising from the beneficiaries, or there are challenges with the assets, then a non-professional Trustee can quickly become overwhelmed and frustrated. Speaking from my own experience, I have known family member Trustees who accepted the nomination to serve as the fiduciary and quickly came to regret it. It can be a heavy, complex, and psychologically onerous duty to perform, and sadly it can sometimes bring about unhappy results. I can think of families that no longer share holiday dinners together because of such results.
Fortunately, there are excellent resources for people in such situations. It isn’t a huge industry, with very few practices running television commercials or buying billboard ad space, but the industry is definitely here. Many, if not most, estate planning attorneys are willing and able to serve as the fiduciary themselves, or provide legal advice to the fiduciary. Some accounting firms have a CPA on staff who specializes in trust and estate work, and they are often an excellent resource to the non-professional or non-corporate trustee. Of course, there are the banks, trust companies, and other professional fiduciaries that may be willing to serve provided the account qualifies for their services. Lastly, there are firms like ours which can serve as an experienced advisor to the non-professional fiduciary.
Serving as a fiduciary (Trustee, Personal Representative, Conservator) is serious business, and there can be serious consequences. But the fiduciary has serious resources to assist them, and that’s something about which we can all be thankful.
– Chad Campbell