Thursday, August 11, 2016
You may be surprised to learn that there are several ways for a bad trustee to escape liability in court. For example, if you consent to a transaction before taking it, you may have just waived your right to object in the future. Same goes for singing a release of liability, you will have effectively waived any future lawsuit against a trustee for wrongdoing. The saving grace is that you must be given a full disclosure before doing either. Further, exculpation clauses can be provided for in the trust document, meaning that a trustee does not have to be responsible for negligence, only gross negligence, recklessness, and intentional harm, which can carry a tough burden. On top of everything, a court has power to excuse a trustee’s breach at any time in the name of equity. Ultimately, there are many ways that trustees escape liability, so make sure you have an efficient plan of attack when battling your trustee.
See California Trust and Probate Litigation, Legal Loopholes: How Trustees Escape Liability, Wealth Management, August 4, 2016.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.