A trust is not an agency

Charles E. Rounds, Jr.
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The trustee is not an agent of the beneficiary. The trustee's duty not to delegate the administration of the trust could well be implicated if the trustee without authority were to behave as if he were the beneficiary's agent. In the absence of agreement, the beneficiary is not personally bound to indemnify the trustee for trust administration expenses. The beneficiary may voluntarily undertake to make himself or herself liable to the trustee, e.g., by furnishing funds to enable the trustee to improve the trust estate or by litigating in order to collect insurance proceeds. In England, on the other hand, the beneficiary in some cases may be personally bound to indemnify the trustee to the extent there are insufficient assets in the trust estate to do so. The beneficiary of a trust is not an agent of the trustee. The beneficiary qua beneficiary is not an agent of the trustee. The trustee owes the beneficiary duties, not the other way around. Thus, it is a “well-established principle that a trustee cannot simply delegate his own duty to provide information to his beneficiary or force the beneficiary to find avenues for information he is rightfully owed.” The trustee’s fiduciary duty to keep the beneficiaries reasonably informed is taken up generally in §6.1.5.1 of Loring and Rounds: A Trustee’s Handbook. The agency relationship and the trust relationship are compared and contrasted in §9.9.2 of the Handbook, which section is reproduced in its entirety below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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