It's not just recent college grads moving back in with their parents. So are older children. And more parents are moving in with their kids. This is happening for financial reasons -- two or more can live more cheaply than one -- and in many cases for the children to provide care and companionship to the parents in their later years.
So you have been asked to serve as trustee on the trust of a family member. This is a great honor meaning that the family member trusts your judgment and is willing to put the welfare of the beneficiary or beneficiaries in your hands. However, it is also a great responsibility. You need to go into it with your eyes wide open. Here are six questions to ask before saying "yes":
May I read the trust? The trust document is your instruction manual. It tells you what you should do with the funds or other property you will be entrusted to manage. Make sure you read it and understand it. Ask the drafting attorney any questions you may have.
What are the grantor's goals? Unfortunately, most trusts say little or nothing about their purpose. They give the trustee considerable discretion about how to spend trust funds with little or no guidance. Often the trusts say that the trustee may distribute principal for the benefit of the surviving spouse or children for their "health, education, maintenance and support." Is this a limitation, meaning you can't pay for a yacht (despite arguments from the son that he needs it for his mental health)? Or is it a mandate that you pay to support the surviving spouse even if he could work and it means depleting the funds before they pass to the next generation? How are you to balance the needs of current and future beneficiaries? It is important that you ask the grantor while you can. It may even be useful if she can put her intentions in riding in the form of a letter or memorandum addressed to you.
How much help will I receive? As trustee, will you be on your own or working with a co-trustee? If working with one or more co-trustees, how will you divvy up the duties? If the co-trustee is a professional or institution, such as a bank or trust company, will it take charge of investments, accounting and tax issues, and simply consult with you on questions about distributions? If you do not have a professional co-trustee, can you hire attorneys, accountants and investment advisors as needed to make sure you operate the trust properly?
How long will my responsibilities last? Are you being asked to take this duty on until the youngest minor child reaches age 25, in other words for a clearly limited amount of time, or for an indefinite period that could last the rest of your life? In either case, under what terms can you resign? Do you name your successor or does someone else?
What is my liability? Generally trustees are relieved of liability in the trust document unless they are grossly negligent or intentionally violate their responsibilities. In addition, professional trustees are generally held to a higher standard than family members or friends. What this means is that you won't be held liable if you get professional help, for instance with the trust investments, and they happen to drop in value. However, if you use your neighbor who is a financial planner as your adviser without checking to see if he has run afoul of the applicable licensing agencies, and he pockets the trust funds, you may be held liable.A well-respected Massachusetts attorney who served as trustee on many trusts used a friend as an investment adviser who put the trust funds in risky investments just before the 2008-2009 stock market crash. The attorney was held personally liable and suspended from the practice of law. So, be careful and read what the trust says in terms of relieving you of personal liability.
Will I be compensated? Often family members and friends serve as trustees without compensation. However, if the duties are especially demanding it is not inappropriate for them to be paid something. The question then is how much. Professionals generally charge an annual fee 1 percent of assets in the trust. So, the annual fee for a trust holding $1 million would be $10,000. Often, they charge a higher percentage of smaller trusts and a lower percentage of larger trusts. If you are doing all of the work for a trust including investments, distributions and accounting, it would not be inappropriate to charge a similar fee. However, if you are paying others to perform these functions or are acting as co-trustee with a professional trustee, charging this much may be seen as inappropriate. A typical fee in such a case is a quarter of what the professional trustee charges, or .25 percent (often referred to by financial professionals as 25 basis points). In any case, it's important for you to read what the trust says about trustee compensation and discuss the issue with the grantor.
If after asking these questions you feel comfortable serving as trustee, then by all means accept the role. It is an honor to be asked and you will provide a great service to the grantor and beneficiaries.
The Massachusetts Appeals Court has ruled that an agent named in a health care proxy lacks authority to agree to arbitration on behalf of a nursing home resident in a wrongful death case. Barrow v. Dartmouth Nursing Home (Mass App. Court No. 13P-1375, August 18, 2014). The Court noted that the Supreme Judicial Court had recently defined the standards for authorizing arbitration agreements and distinguished them from other forms of agency authority, including those governing health care proxies and the signing of ordinary nursing home admission agreements. Johnson v. Kindred Health Care (Mass., No. SJC-11335, Jan. 13, 2014); and Licata v. GGNSC Malden Dexter LLC (Mass., No. SJC-11336, Jan 13, 2014) (Click here to learn more about the agreements).
For more than 30 years, David Wizansky, with his wife, Margot, has developed and operated group homes in the Boston area for adults with developmental disabilities through their company, Specialized Housing. Now he has written a book, Identity, Self, and the World: Learning from Adults with Developmental Disabilities, that distills what he has learned from working with this population.
In my blog post last week I provided a checklist for determing whether you need a lawyer for your estate planning, hoping to help readers determine whether they have a "plain vanilla" situation and goals or whether their circumstances and wishes require attorney help.