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Who qualifies as a Trustee?

by | Nov 17, 2019 | Elder Law, Estate Planning

At Akin Law P.A. we can help you with step-by-step instructions in the formation of a trust. You can be sure to receive great advice from our attorneys, Sherille D. Akin and Dain C. Akin, the Central Florida trust attorneys known for their detailed assessment and personal service down to the nitty gritty. Our firm’s services include representation of estate and trust fiduciaries and beneficiaries pertaining to potential breaches of fiduciary duties, trust interpretation and enforcement, and litigation to protect beneficial interests of assets, and representation of parties in filing and defense of guardianship actions.

“Living Trusts “are different from a will. The living Trust is advantageous because after death, property held in trust can be transferred to beneficiaries without probate court. A Trust will allow you to manage your assets during your life and will list a beneficiary who will receive the assets after your death. A beneficiary of a trust may be a family member, a friend, a charity, or a household pet.

A trust can be drafted to supplement a will or in the place of a will. The most common type of Trust is a living trust. By transferring your assets into your living trust, you will bring them under the legal protection of the estate planning tool. You must fund your living trust to avoid probate. Funding a living trust involves transferring property to the trust. Once the trust is funded, the assets it holds will be protected from probate and give you and your family peace of mind.

Choose a successor trustee

The successor trustee would be a person that will pay debts and distribute your assets according to your wishes when you pass. If you do become incapacitated, your successor trustee then handles your affairs.

Choosing a successor must be someone you trust implicitly and can be named beneficiary in the trust. Discuss your living trust plans with your chosen successor trustee to ensure that he/she is willing and capable to accept the responsibility.

There are challenges to be a Trustee, so when deciding on the ideal choice, the successor trustee should have.

  • Good communication skills.

The Trustee must be able to communicate regularly with the trust beneficiaries

  • Be honest
  • Know and understand the trust document and what the responsibilities are.
  • The Trustee must be able to manage the assets and distribute them to the beneficiaries.
  • The Trustee must be able to close the Trust as determined by the Trust.

The challenges of being chosen to serve as Trustee

  • As the Trustee, you may not live conveniently near where the trustor lived. A better choice for the trustee may be one that lives nearby.
  • There may be personal conflicts with the people you as trustee would need to manage the trust for. It is a better situation to have a good relationship with the beneficiaries.
  • As trustee, you are responsible for defense of any lawsuits against the trust, or you may need to collect money owed to the trust.
  • If you have been chosen to serve as trustee and you have considered the challenges, you may decide to get help from a lawyer that specializes in Trusts, wills, probate and estate planning.

Managing the Trust.

Once you have accepted the appointment as trustee, your main commitment is to manage the trust fund for the benefit of the beneficiaries. Trustees can be sued by the Trust beneficiaries if the trustee does not honor the fiduciary duties or are negligent in their responsibilities to the Trust. Trustees should become literate in the legal duties, and fully understand the trust deed that contains specific provisions on the powers of the Trustees, as well as the intentions to the management of the Trust and the Trust’s assets.

Fiduciary duties of a Trustee

The fiduciary relationship means that a Trustee will, in relation to the trust, the beneficiaries, and other trustees, act honestly, and in good faith. The powers to manage the trust, is in the interest and for the benefit of the beneficiaries.

A Trustee breaching any duty related to the fiduciary relationship, will be liable to the trust for any pecuniary loss suffered by the trust.

Administration of trust assets by the Trustee

The trust assets belong to the trust and not the Trustees, and the Trustees are prohibited from using the trust assets for their own benefit, unless the trust deed authorizes this action.

  • Trustees are responsible for the maintenance of accounting records needed to fairly represent the trusts affairs and to explain transactions and financial positions on request.
  • The Trustee ensures all statutory filing is attended to such as filing taxes, ensuring that the trust is compliant with all the statutory regulations.
  • The Trustee should consult professional advisors such trust, wills, probate and real estate attorneys, to assist in the drawing up agreements, documents, and help with the sale or the acquisition of any assets. The attorneys at Akin Law P.A. can assist in your trust formation. We help our clients with all the details and can provide more information on who would qualify best as a Trustee for your trust.

If you or your loved one needs a trust, contact our law office at 386-271-4740