Duties of Trustees to Beneficiaries

Web Admin - Wednesday, July 30, 2014

long grove wills and trusts lawyerOne common legal instrument that people use to plan their estates is a trust. A trust is a legal entity involving at least three roles: a settlor, a trustee, and a beneficiary. The idea of the trust is that each of these three roles work together. The settlor creates the rules of the trust and provides it with property, and they designate the beneficiary. The beneficiary, like the name suggests, is the person for whom the trust is managed. They derive the benefit of any income or other gains from the trust.

However, between the settlor and the beneficiary lies the trustee. The trustee manages the assets of the trust and uses them in the best interests of the beneficiary as directed by the rules of the trust that the settlor created. This means that the trustee has a variety of duties that they need to fulfill. These trustee duties can be thought of as either substantive or procedural duties. This is not an official classification, and the lines can blur, but it is at least a helpful way to catalog the duties.

Substantive Duties

Substantive duties are those that require the trustee to behave in a certain way. The central example is the duty to administer the trust by the rules the settlor laid out. The trust document will contain a variety of provisions, and it is the trustee's duty to follow them. Another example of these substantive duties is the duty of skill and care. This means that the trustee must manage the trust's assets with reasonable skill and caution. Similarly, Illinois law also imposes a “prudent investor” duty on trustees.

This means that the trustee has the duty to act as a prudent investor of the trust's assets including things like developing a diversified portfolio and actively managing investments as necessary. Trustees working with multiple beneficiaries also have a further duty: that of loyalty and impartiality. The trustee may not favor one beneficiary over the other unless the trust instrument provides some reason for it.

Procedural and Ministerial Duties

Trustees also owe beneficiaries a variety of more procedural duties, which involve the proper formalities of managing the trust. For instance, the law governing trusts in Illinois requires trustees to give annual accountings of the trust's receipts, disbursements, and an inventory of the estate. Trustees also often have duties to provide notice of certain actions such as changes in the trusteeship. This may also include a requirement that the trustee provide the beneficiaries with a copy of the trust instrument for their records.

These are just some of the many duties that trustees owe the beneficiaries of their trust. If you would like more information on the legal ramifications of managing a trust, contact an experienced Illinois estate planning attorney today. Our firm advises clients in many northwest suburban towns like Long Grove, Kenilworth, and South Barrington.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

5 Benefits to Using an Institutional Trustee

Web Admin - Tuesday, April 08, 2014

illinois trusts and estate planning attorneyTrusts are versatile, useful legal instruments that allow the grantor (the person who sets up the trust) to set aside certain money or other assets for the use of another person (the beneficiary). However, the beneficiary does not have direct access to the assets. Instead, the trust is managed by a trustee whose job it is to control the assets and use them in the beneficiary’s best interest. This makes choosing the trustee one of the most important parts of setting up a trust.

Although most individuals can serve as a trustee, Illinois law also allows for the use of an “institutional trustee.” Institutional trustees are companies, often banks, who professionally manage the trust’s assets. These companies usually do charge a fee for the services, but the companies come with several benefits:

  • - They are skilled at managing trusts;
  • - They have the ability to handle complex paperwork and recordkeeping;
  • - They provide continuity to the management of the trust;
  • - They operate free of bias; and
  • - They are regulated to prevent fraud.

Reasons to Use an Institutional Trustee

  1. 1. Experienced Administrators: Institutional trustees have experience managing trusts. This allows them to easily navigate the legal requirements for trustees. Furthermore, many trustees are responsible for investing the trust’s assets. Banks and other institutional trustees are often professional investors who will be able to handle the task better than friends or family.

  1. 2. Strong Recordkeeping: Trusts also have fairly extensive recordkeeping requirements to prevent fraud on the part of the trustee. Institutional trustees have the infrastructure in place to make sure that important documents, like tax returns, are filed on time and do not get misplaced. Furthermore, the use of an institutional trustee prevents this complex work from being pushed onto a friend or family member.

  1. 3. Management Continuity: The corporate nature of institutional trustees also allows for continuity in the trust’s management. Trusts can last for decades and decades. An individual trustee may not be physically or mentally capable of managing a trust for its entire duration. Conversely, institutional trustees have the ability to smoothly transfer trust administration from one employee to the next, allowing for steady management of the assets.

  1. 4. Unbiased Distribution: Additionally, institutional trustees can eliminate the possibility of bias that might exist with trustees who are friends or family. The company would not have any prior history with particular beneficiaries that might interfere with the fair and evenhanded use of the trust’s assets.

  1. 5. Fraud Protection: Finally, institutional trustees have fraud prevention mechanisms in place. Although everyone would like to think that their friends or family members are above reproach, cases of theft on the part of the trustee do happen. Many institutional trustees are subject to government regulation and auditing requirements that can reduce the risk of fraud on their parts.

If you are interested in setting up a trust, consult with an Illinois estate planning lawyer to tailor one to your specific situation. Our attorneys lend their experience to clients across the northwest suburban area, including in Long Grove, Riverwoods, and Kenilworth.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

Five Advantages of Living Trusts Over Wills

Web Admin - Friday, January 03, 2014

By Jay Andrew
JAA@DGAALAW.COM / (847) 934-6000

When preparing for the disposition of their property after they pass on, many people often find themselves questioning what wills and living trusts are and which document would better suit their needs. Wills, governed by the Probate Act of 1975, are legal documents that a person prepares prior to their death, which specifies how the rest of the family should distribute their property and handle the other affairs. Living trusts, which are controlled by the Trusts and Trustees Act, are legal devices that allow a person of the creator’s choosing, the trustee, to handle the disposition of their property. While everyone’s situation comes with unique considerations, living trusts may provide various advantages over wills. Five of the most important advantages include:

1. Living trusts can help your family avoid dealing with long, draw-out probate proceedings. Courts use probate proceedings to tie up a person’s loose ends, distribute their property, and generally enact their will. If you use a living trust, rather than moving through the court system, the trustee can distribute the property in accordance with the trust. This means that your family will not need to bring themselves to the courthouse and deal with the fees and hassle that come along with probate proceedings.

2. Living trusts also provide more privacy than wills do. While both wills and living trusts remain private throughout your life, the probate court will look at the will after you pass on, even if there are no formal probate proceedings. That means that the will becomes a matter of public record. On the other hand, your relatives will not need to file the trust with the court, so it can stay between them.

3. Living trusts also stand a better chance of surviving a legal challenge after your death, making it more likely that your final plans will be enacted to your specifications. The extra strength from a living trust comes from your ability to keep an active eye on it during your life. Because you would stay involved with the trust’s management during your life, relatives would find it harder to prove that you were not of sound mind when making the plan.

4. Living trusts make leaving property to minor children simpler too. Because minors cannot own most property, the trustee whom you choose can manage it for them, whereas a court appointee would likely handle the management if you chose to pass the property on with a will.

5. Living trusts have further benefits in the event that you become incapacitated while alive. Ordinarily, such circumstances would require relatives to petition the court for control of your affairs, and then the court would appoint a person to manage them. With a living trust, you can appoint a successor trustee to take over management in the event that you become incapacitated.

Decisions about testamentary dispositions can be complicated and involve multiple areas of law. If you are in the process of making such decisions, contact a Palatine estate planning lawyer today. We serve many areas in the northwest suburbs including Arlington Heights, Crystal Lake and Barrington.

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