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As a trustee, you are responsible for managing the trust and working with the beneficiaries. You have a fiduciary duty, or a legal obligation, to act solely in the interest of the beneficiaries by fulfilling the instructions of the trust as the trustor has required. A trustee must be respectful and careful, loyal, and impartial when serving as the trustee, and cannot take advantage of his or her trusted position to self-deal or glean benefits for him or herself from the trust. Developing a full understanding of what the legal obligations are as a trustee can be confusing, especially if you have limited legal experience dealing with trusts. An experienced estate planning and trusts lawyer at can assist you. 

Trustees can be held personally liable for acts, or failures to act, as a trustee when the trustee does not carefully and diligently adhere to the trustee’s duties. When a trustee commits a breach of his or her fiduciary duty, the trustee opens him or herself up to liability for his or her actions taken while acting as the trustee. Examples where a trustee can be held personally liable for acts done while acting as a trustee include the following:

- A trustee may be held personally liable if there is a conflict of interest biasing the trustee’s judgment when it comes to the interests of the trust. Self-dealing, or making decisions or investments using the trust’s funds that in some way benefit the trustee either directly or indirectly will expose the trustee to liability;

- A trustee can be held personally liable for any interest and/or penalties that accrue for taxes filings that are made late. Liability exists because filing the appropriate tax forms on behalf of the trust is a responsibility that lies with the trustee. 

- A trustee could be held financially liable for losses on stock diversifications on behalf of the trust, or a failure to diversify, if losses are substantial. The trustee has an obligation to serve in the best interests of the trust beneficiaries, and failing to diversify when stocks are concentrated in a single company can lead to a significant loss in value of the trust. 

- A trustee can be held liable for commingling personal finances and the trust finances, especially in situations where the trustee is a family member to the beneficiaries. A trustee can avoid the appearance of impropriety by maintaining clear and thorough accounting records of the finances of the trust, and clear documentation regarding his or her personal finances. 

If you have concerns that your trustee is in breach of his or her fiduciary duties, or if you are a trustee with concerns about a course of action for the trust you manage, please feel free to contact one of our experienced Illinois estate planning attorneys today. Our firm serves the communities of Inverness, Palatine, Schaumburg, Arlington Heights, Long Grove, Kenilworth, Riverwoods, Barrington, South Barrington, and Mount Prospect.

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.

Source: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2129&ChapterID=61

The capital gains tax exists as a way for the government to tax the income that flows to investors from certain investments. In general, the capital gains tax applies to the sale of most assets other than inventory. This includes the sale of things like stocks, bonds, and real estate. The current capital gains tax rates vary depending on a person's income bracket. According to the IRS, the capital gains tax for people in the 25 percent, 28, percent, 33 percent, and 35 percent income tax brackets would be 15 percent.

People paying taxes in the highest bracket, 39.6 percent, would pay 20 percent in capital gains tax, and people in the other, lower tax brackets do not pay capital gains tax at all for most capital gains income. Additionally, the Affordable Care Act also introduced a further 3.8 percent tax on capital gains income for people earning either $200,000 a year as single filers, or $250,000 a year as married filers, which went into effect at the start of 2013.

This capital gains tax can interact with trusts in complex ways, and trustees should be aware of the issues created by the capital gains tax and trusts. First, trustees should be aware of how capital gains affects the way that they manage K-1 tax forms. Second, trustees should keep in mind the interaction between capital gains and the income distribution tax deduction that trusts are allowed to take.

K-1 Forms

K-1 forms are a type of tax form that exists to help the owners of pass through entities fill out their personal income tax returns. Pass through entities are entities like S corporations and some LLCs that do not pay taxes themselves, but instead pass the taxes on to the owners. Trusts, strictly speaking, are not actually pass through entities since the trust is responsible for paying some taxes, but the beneficiaries may also owe taxes based on distributions to them from the trust, so they often receive a K-1 form. As far as the need to report capital gains income on a K-1 form, that depends on the specifics of the trust. As a default rule, the capital gains and losses stay with the trust itself, but the trust instrument may choose to pass those along to the beneficiaries, which would result in the trustee needing to add them to the K-1 form.

Capital Gains and the Income Distribution Deduction

Capital gains may also have an effect on the trust's income distribution deduction, a tax deduction that trusts may take for amounts paid to an income beneficiary. The income distribution deduction is equal to the lesser of either (1) the distributions minus tax-exempt income or (2) the “distributable net income” minus tax exempt income. Capital gains may affect this distribution because it figures into the calculation of distributable net income under several circumstances, most commonly if the trust requires the trustee to distribute the gains to the beneficiaries.

Managing a trust is a complex task from both a legal and financial perspective. If you have questions, seek help from an experienced Illinois estate planning attorney. Our firm's skilled lawyers serve clients in many northwest suburban towns such as Inverness, Barrington, 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.