160 likes | 334 Views
Trustee Compensation. Common Law. No compensation unless settlor provided for compensation in the trust. Policy – fear that trustee would act to increase compensation even if not in trust’s best interests. Modern Law. Assuming trust instrument is silent: 1. Court Determination
E N D
Common Law • No compensation unless settlor provided for compensation in the trust. • Policy – fear that trustee would act to increase compensation even if not in trust’s best interests.
Modern Law Assuming trust instrument is silent: • 1. Court Determination • Trustee petitions court for compensation approval.
Modern Law • 2. Trustee Determination • Trustee determines reasonable compensation. • Trustee takes from trust. • Interested person can sue trustee for taking excessive compensation.
Modern Law • 3. Schedule or Scale • Based on, for example, • Value of trust • Amount of trust income
Texas -- § 114.061 • Presumption = reasonable compensation • Exceptions: • Settlor provides otherwise • No compensation • Exact amount • Method • Court may deny compensation if trustee breaches the trust. § 113.082
Compensation Issues • Should settlor waive compensation? • Should settlor provided a fixed fee? • Should settlor “shop around” for fees if using corporate trustee?
Factors to Determine Reasonable Fee • 1. Gross income of trust
Factors to Determine Reasonable Fee • 2. Success or failure of trust administration
Factors to Determine Reasonable Fee • 3. Trustee’s skill and experience
Factors to Determine Reasonable Fee • 4. Trustee’s fidelity or disloyalty
Factors to Determine Reasonable Fee • 5. Amount of trustee’s liability exposure and responsibilities assumed
Factors to Determine Reasonable Fee • 6. Time spent
Factors to Determine Reasonable Fee • 7. Custom in the community
Factors to Determine Reasonable Fee • 8. Character of work • Skill and judgment, or • Routine
Factors to Determine Reasonable Fee • 9. Trustee’s estimate of value of services