It's easy to be jealous of people who inherit money from loved ones or are beneficiaries of trusts. On the surface, it seems that since they had no entitlement to the money they are receiving, anything they get from a trust or inheritance is purely a windfall.
So it may seem like sour grapes when a trust or estate beneficiary complains about the job the fiduciary -- the person managing the beneficiary's money -- is doing. Many people unfamiliar with situations like these would just tell the beneficiary to be happy with what he or she is getting, and that if the fiduciary isn't doing a perfect job, at least it's better than nothing.
However, the problem can be much more serious than a few lost pennies. Institutional fiduciaries often charge substantial management and custodial fees and are increasingly finding new ways to increase their revenue, sometimes at their clients' expense. Individual fiduciaries, meanwhile, are often inexperienced at following fiduciary duties and find it difficult or impossible to separate their own personal interests from the requirement that they act impartially for their beneficiaries' benefit. Regardless of who your fiduciary is, good communication is the key to working together successfully. Yet good communication is often the most difficult thing to establish.
In any situation involving potential or actual conflict, you need to know your rights. Although each state has different laws governing the duties that fiduciaries owe to their beneficiaries, many states follow the guidelines established by the National Conference of Commissioners on Uniform State Laws as set forth in a document called the Uniform Trust Code, or UTC. Let's take a peek at the UTC's provisions to give you an idea of what typical laws require of fiduciaries. Although the UTC deals directly with trusts and trustees, courts often look to trust law in determining the duties of other types of fiduciaries, such as executors of estates and people acting under a power of attorney.
Your rights as a beneficiary
Article 8 of the UTC discusses a number of duties that a fiduciary must follow. First, although the fiduciary must follow the instructions given in a trust or other legal document, he or she must also act solely in the beneficiaries' best interest, even if that means going against the fiduciary's own best interest. Furthermore, in trying to resolve a disagreement among two or more beneficiaries, the fiduciary must remain impartial unless he or she has a legal and rational basis for doing otherwise.
In fulfilling these duties, the fiduciary must use all of his or her skills to act with the reasonable level of care that an objective, prudent person would use. So if the fiduciary involved is a lawyer, that fiduciary must act with the same level of care that lawyers would use -- a level of care that a court is likely to interpret as higher than if it came from an "average" person.
By now, you may be wondering how anyone could possibly qualify to be a fiduciary. The answer lies in a fiduciary's legal ability to delegate some responsibilities to other people or institutions. For instance, if a fiduciary has no investing experience, that person could hire an investment professional to help. The UTC requires that the costs for these service providers, as well as the costs the fiduciary incurs, must be reasonable.
Perhaps the most common complaint from beneficiaries is that they don't know what the fiduciary is doing. To account for such problems, the UTC requires that fiduciaries keep detailed records of all actions taken on the trust's behalf. When fiduciaries begin their work, they must inform all of the beneficiaries that the trust exists and then provide contact information. Fiduciaries are also required to give beneficiaries a copy of the trust upon request. Most importantly, beneficiaries have a right to receive a detailed report from the fiduciary that lists the assets and liabilities of the trust, along with any income and expenses of the trust, on at least an annual basis. The report must include the fees or other compensation that the fiduciary takes. Although the beneficiaries can choose not to require a fiduciary to provide this information, they can also change their mind at a later time and require reports going forward, for any reason.
Although the duties that a fiduciary owes to beneficiaries are numerous, they are justified, given the power that fiduciaries hold. In general, a trust fiduciary has extremely broad powers to fulfill the terms of the trust, including not only powers specifically granted by the legal document itself but also a long list of investment, payment, legal, and administrative powers that most state statutes automatically give. The extensive duties impose a much-needed check on the fiduciary's power.
What if the fiduciary breaks the rules?
Article 10 of the UTC explains what a beneficiary can do if a fiduciary doesn't fulfill his or her duties. In such a case, it's important to look at the trust document to see whether it attempts to eliminate the fiduciary's liability for certain actions. Although many trusts limit fiduciary liability to encourage potential fiduciaries to take the job in the first place, the fiduciary is never allowed to act fraudulently or in bad faith.
If the fiduciary and the beneficiaries can't agree on a resolution, then the beneficiaries can sue the fiduciary for breach of trust. If the fiduciary can point to specific trust terms that the fiduciary relied on in taking a certain action, then the fiduciary often will not be liable even if the action turns out badly. However, if the court agrees with the beneficiaries, then a fiduciary may have to pay monetary damages, fix the problem, suffer a reduction or loss of compensation, or even be removed as fiduciary.
Dealing with a fiduciary who isn't doing his or her job is never easy. Keep in mind, however, that you have rights as a beneficiary, and that taking action to enforce your rights is the best way to ensure that you receive the treatment you deserve.
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Fool contributor Dan Caplinger welcomes all comments. The Motley Fool has an ironclad disclosure policy .
