Although trusts do avoid the complication and expense of probate proceedings, a trustee—the person given power to hold legal title to and to manage trust assets—is not necessarily spared the administrative burdens that can accompany estate management. Trustee responsibilities can include clearing title to property held in the decedent’s name, the preparation and filing of estate and income tax returns, and the collection of insurance proceeds—essentially any task necessary to administer the trust as the trust instrument instructs. Typically, the creator of the trust—the settlor—will appoint a trustee in the trust instrument and provide compensation from his or her estate for the trustee’s services. However, if the trust instrument does not specify any compensation, California Probate Code § 15681 allows a trustee to receive “reasonable compensation under the circumstances.”
In re McLaughlin’s Estate defines “reasonable.” First, the trial court has wide discretion when making a fee determination, but it should consider the following factors:
1) The gross income of the trust estate
2) The success or failure of the trustee’s estate administration
3) Any unusual skill or experience which the trustee may have brought to his/her work
4) The fidelity or disloyalty displayed by the trustee
5) The amount of risk and responsibility assumed by the trustee
6) The time spent by the trustee in carrying out the trust
7) Community customs as to fees allowed by settlors/courts or as to fees charged by trust companies and banks
8) The character of the administration work done
9) Whether the work was routine or involving skill and judgment
10) Any estimate which trustee has given of his/her own services.
In McLaughlin, the appeal court concluded, after considering the above factors, that the trial court justly allocated reasonable fees—the trustees had profitably and with special skill managed the trust property, had accurately summarized receipts and transactions, and had committed a large amount of time to the trust’s administration.
Estate of Nazro provides another example of the above factors in action: Here, although the trustee received dividend checks, made bank deposits, wrote checks, prepared quarterly accountings, and reviewed trust assets, the work did not consume much of the trustee’s time. Further, the court noted that corporate trustees in the area customarily charged management fees based on a schedule of percentages of the value of the various trust assets. Therefore, the court held that $2,500 was an appropriate amount of compensation for the trustee’s services.
Ultimately, managing a trust estate is not always a walk in the park—if not otherwise provided, trustees should not be afraid to ask for compensation for their services. However, keep in mind that compensation must reasonable and proportional to the work done on behalf of the trust.
If you have recently been named or appointed as a trustee or you are interested in creating a trust, please contact the experienced attorneys at Lonich Patton Ehrlich Policastri. We can help you understand what being a trustee entails, and if you want to create a trust, how you can properly compensate your chosen trustee.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
California Probate Code § 15681
In re McLaughlin’s Estate (1954) 43 Cal.2d 462
Estate of Nazro (1971) 15 Cal.App.2d. 218