The Ultimate Guide to Trustee Malfeasance | RMO Lawyers

If you are the beneficiary of a trust, you already know how much power is wielded by a trustee. In many cases, trustees have privileged access to, and authority over, vast reserves of valuable assets intended to benefit the beneficiaries. In a perfect world, trustees would never abuse their position for personal gain, but it is an unfortunately an all-too-common occurrence.

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What is trustee malfeasance?
Trustee malfeasance refers to any type of negligent, self-serving, erroneous, or retaliatory conduct committed by the trustee of a trust resulting in harm to trust assets or beneficiaries. Trustee malfeasance is a broad term encompassing many different types of offenses, both intentional and unintentional. Trustees have many duties under the law, and failing to live up to any of them may provide grounds for a beneficiary to file a lawsuit.

What is the definition of trustee?
A trustee is a person nominated by a trust document to manage assets owned by another person or their estate. A trustee must always act in the best interests of the trust beneficiaries. A trust differs from a will in that it takes effect as soon as it is legally created, rather than upon the creator’s death. The trust’s creator is sometimes called a grantor, settlor, donor, trustor, or trustmaker. A trust’s creator often appoints themselves as their own trustee during their lifetime, and names a successor trustee to take over after they have passed.

What are trustee duties?
First and foremost, the trustee has a duty of loyalty. As a fiduciary, a trustee is legally bound to base all decisions regarding trust assets on what is best for the beneficiaries and in keeping with the stated or implied intentions of the trust document.

The trustee must also avoid and disclose any conflicts of interest. A common example is when a trustee sells trust assets to themselves. The fact that the trustee is acting as both the seller and the buyer makes such a transaction inherently suspect, even (and especially) when the trustee is also a beneficiary.

To help prevent conflicts of interest, trustees also have a duty to keep trust assets separate from personal assets. Any commingling or misappropriation of trust funds is strictly prohibited by law, though it remains alarmingly common. Trustees must always keep a detailed and transparent accounting of all transactions relating to trust assets, so if the trustee is unforthcoming with documentation, or the numbers don’t seem to add up, it may be a warning sign that a trustee is diverting funds to personal accounts or for personal expenses.

The duty of disclosure is another responsibility of the trustee. A trustee must always keep all parties to the trust reasonably informed of any action taken with regard to trust assets. Failure to formally notify beneficiaries of any material transactions may constitute a breach by the trustee.

Furthermore, the trustee must always act with impartiality, meaning they must never favor one beneficiary over another, or make any decision that benefits one beneficiary to the detriment of another. Violations happen most frequently when the trustee also is a beneficiary.

And while a trustee may need to employ professionals in certain circumstances, trustees generally have a duty not to delegate. This means that the trustee may not transfer their responsibilities or task someone else with performing the duties that the trust’s creator specifically intended for them to carry out personally, and if they do they will still be responsible for their agent’s acts.

Finally, a trustee has a duty to pursue on behalf and defend claims against the trust. This basically means that the trustee must proactively work to preserve trust assets in any legal proceedings, whether that means suing someone who damaged the trust, or defending the trust against a bogus claim.

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RMO LLP serves clients throughout California and Texas, with offices in Los Angeles, Orange County, San Diego, Fresno, Pasadena, the Bay Area, Dallas, and Houston.

We are laser-focused on guiding our trustee, executor, beneficiary, heir, conservator, and guardian clients through some of the most complex and emotionally charged issues life can throw them. Our commitment to helping our clients achieve results that not only add to their bottom line but to their peace of mind is at the core of everything we do. That’s RMO.