Facultades del fideicomisario en Nueva Jersey

The general powers

N.J.S.A. 3B:31-69(a) provides that a trustee, without authorization by the court, may exercise the powers conferred by the terms of the trust and, except as limited by the terms, all powers over the trust property which an unmarried competent owner has over individually owned property, any other powers appropriate to achieve the proper investment, management and distribution of the trust property, and any other powers conferred by the trust code or by Title 3B — except as N.J.S.A. 3B:11-4.1 and other express statutory restrictions limit them. The exercise of a power is subject to the fiduciary duties the code prescribes (N.J.S.A. 3B:31-69(b)) — good faith, loyalty, impartiality and prudence (N.J.S.A. 3B:31-54; N.J.S.A. 3B:31-55; N.J.S.A. 3B:31-56; N.J.S.A. 3B:31-57).

The fiduciaries' powers of chapter 14

In the absence of contrary or limiting provisions in the instrument or in a court order, every fiduciary has the powers N.J.S.A. 3B:14-23 lists — among them to accept additions to the property; to insure the property and the fiduciary against liability; to sell property at public or private sale, for cash or on credit; to grant options; to lease property, a trustee for terms of up to ten years; to mortgage or pledge; to continue a business; to settle or compromise claims; to employ and compensate attorneys, accountants and other agents; to make distributions in cash or in kind; and, where there are three or more fiduciaries, to act by a majority, a dissenting fiduciary who joins in carrying out the majority's decision but promptly expresses the dissent in writing being relieved of liability. A fiduciary's sale of property to the fiduciary is voidable as the statute provides (N.J.S.A. 3B:14-36), and a person who in good faith assists or deals with a fiduciary without knowledge that the fiduciary is exceeding or improperly exercising the powers is protected (N.J.S.A. 3B:14-37).

• Sell, exchange, lease, mortgage and insure property; grant options; continue a business — N.J.S.A. 3B:14-23.
• Settle claims; employ attorneys, accountants and agents; distribute in cash or in kind — N.J.S.A. 3B:14-23.
• Collect the trust property and compel its delivery; enforce and defend claims — N.J.S.A. 3B:31-65, 3B:31-66.
• Hold title in the name the certification states; a transfer to "the trust" is not invalid — N.J.S.A. 3B:31-81, 3B:31-19.
• Combine two or more trusts or divide a trust, where no beneficiary's rights are impaired — N.J.S.A. 3B:31-34.

Discretion, and the standard that governs it

Notwithstanding the breadth of discretion the terms grant — words such as "absolute", "sole" or "uncontrolled" included — a trustee exercises a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries (N.J.S.A. 3B:31-68). A trustee who is also a beneficiary may exercise a discretionary power to make distributions to or for the trustee's own benefit only in accordance with an ascertainable standard relating to health, education, support or maintenance, or with the consent of an adverse party, and never to satisfy the trustee's own legal obligation of support; the co-trustees, or a trustee the court appoints, exercise what the prohibited trustee cannot, and the limits do not apply while the trust is revocable (N.J.S.A. 3B:11-4.1). Whether or not a trust contains a spendthrift provision, a creditor may not compel a distribution that is subject to the trustee's discretion, even if the discretion is expressed as a standard or the trustee has abused it (N.J.S.A. 3B:31-38(a)). A trustee who acts in reasonable reliance on the terms of the trust as expressed in the instrument is not liable for a breach to the extent it resulted from the reliance (N.J.S.A. 3B:31-75).

Delegation, the notice, and co-trustees

A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate — ministerial, administrative and management functions — exercising reasonable care, skill and caution in selecting the agent, establishing the scope and terms of the delegation in writing and periodically reviewing the agent's actions, and provides reasonable written notice to the qualified beneficiaries on each occasion, including the identity of the agent (N.J.S.A. 3B:31-60(a), (b), (c)); a trustee who complies is not liable for the agent's decisions or actions (N.J.S.A. 3B:31-60(d)). Investment and management functions are delegated under the prudent investor act on the same terms, with reasonable advance written notice to the beneficiaries eligible to receive income, naming the agent (N.J.S.A. 3B:20-11.10). Co-trustees unable to reach a unanimous decision may act by majority decision, a dissenter who joins in carrying it out but promptly dissents in writing being relieved of liability; a trustee may not delegate to a co-trustee a function the settlor reasonably expected the trustees to perform jointly; and every trustee exercises reasonable care to prevent a co-trustee's breach of trust and to compel its redress (N.J.S.A. 3B:31-48).

Powers to direct, and the investment adviser

While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust (N.J.S.A. 3B:31-61(a)). Where the terms confer on a person other than the settlor of a revocable trust a power to direct certain actions of the trustee, the trustee acts in accordance with a written exercise of the power unless it is contrary to the terms or the trustee knows it would constitute a breach of a fiduciary duty the holder owes the beneficiaries (N.J.S.A. 3B:31-61(b)); the terms may confer a power to direct the modification or termination of the trust (N.J.S.A. 3B:31-61(c)); a holder who is not a beneficiary acts in good faith and is liable for a loss that results from a failure to (N.J.S.A. 3B:31-61(d)). Where the instrument gives a person authority to direct, consent to or disapprove investment decisions, that person is an investment adviser and a fiduciary unless the instrument provides otherwise (N.J.S.A. 3B:31-62(a)); a fiduciary who follows the adviser's direction is liable only for its own willful misconduct or gross negligence (N.J.S.A. 3B:31-62(b)), and has no duty to monitor the adviser, to advise or consult with the adviser, or to communicate with, warn or apprise any beneficiary about a direction the fiduciary would have exercised differently (N.J.S.A. 3B:31-62(e)). New Jersey has no separate directed trust act; the common law of trusts and principles of equity supplement the code (N.J.S.A. 3B:31-6).

Combining, dividing, and a second trust

A trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the result does not impair the rights of any beneficiary or adversely affect achievement of the purposes of the trust (N.J.S.A. 3B:31-34). A noncharitable irrevocable trust may be modified or terminated by consent — without court where the trustee and all beneficiaries consent and the result is not inconsistent with a material purpose, and a spendthrift provision is not presumed a material purpose (N.J.S.A. 3B:31-27) — and the court may modify a trust for unanticipated circumstances (N.J.S.A. 3B:31-28), construe its terms to the settlor's probable intent (N.J.S.A. 3B:31-32) or modify them to achieve the settlor's tax objectives (N.J.S.A. 3B:31-33). New Jersey's trust code has no decanting section: whether a trustee may distribute trust property to a second trust is a question of the instrument's terms and the common law of trusts (N.J.S.A. 3B:31-6), and one for a licensed New Jersey attorney of your choosing.

Dealing with banks and title companies: the certification of trust

Instead of furnishing a copy of the trust instrument to a person other than a beneficiary, the trustee may furnish a certification of trust stating that the trust exists and the date the trust instrument was executed, the identity of the settlor, the identity and address of the currently acting trustee, the powers of the trustee, the revocability or irrevocability of the trust and the identity of any person holding a power to revoke it, the authority of co-trustees to sign and whether all or less than all are required in order to exercise powers of the trustee, and the name in which title to trust property may be taken (N.J.S.A. 3B:31-81(a)). It is signed by all persons identified as currently acting as trustee; it states that the trust has not been revoked, modified or amended in any manner that would cause its representations to be incorrect; and it need not contain the dispositive terms (N.J.S.A. 3B:31-81(b), (c), (d)); the recipient may require copies of the excerpts that designate the trustee and confer the power to act in the pending transaction (N.J.S.A. 3B:31-81(e)). A person who acts in reliance on it without knowledge that its representations are incorrect is not liable for so acting and may assume without inquiry the existence of the facts it contains (N.J.S.A. 3B:31-81(f)), and a person who demands the instrument beside a certification is liable for damages if the court finds the demand was not in good faith (N.J.S.A. 3B:31-81(g)). The custodian of a digital account may ask for a certification that includes the trustee's consent to the disclosure of electronic communications (N.J.S.A. 3B:14-61.12).

When a licensed New Jersey attorney is the right next call

Whether the instrument limits a power, how a discretionary decision fares under the statute's standard, whether a transaction is conflicted (N.J.S.A. 3B:31-55), whether a second trust suits the administration, and what a certification should say for a particular transaction are questions a licensed New Jersey attorney of your choosing answers. TrusteeClear places your own answers to the statute's items into the certification's blanks, with a signature line for every acting trustee, and reviews nothing.