Trustees and the privilege against self-incrimination

Charles E. Rounds, Jr.
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A trust is not a juristic person. Rather it is a fiduciary relationship with respect to property, title to which is in the trustee. That having been said, the federal courts will generally deem even a “common law” trust a “collective entity” when adjudicating availability of the Fifth Amendment privilege against self-incrimination. Thus, a trustee may not, at least via assertion of the privilege, avoid having to comply with a governmental request for trust-related documentation, the privilege protecting only natural persons. See U.S. v. Fridman, 974 F.3d 163 (2d Cir. 2020). This is not the only situation in which a trust is deemed an entity. See generally §8.15.77 of Loring and Rounds: A Trustee’s Handbook, which section is reproduced in its entirety in the appendix immediately below.

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