Les pouvoirs du fiduciaire au Colorado

The general powers

A Colorado trustee, without authorization by the court, may exercise the powers conferred by the terms of the trust and, except as the terms limit them, all powers over the trust property that 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 the powers the code and the Colorado Fiduciaries' Powers Act confer (C.R.S. §15-5-815(1)).

The breadth is deliberate; the limit is the duty. The exercise of a power is subject to the fiduciary duties the code prescribes (C.R.S. §15-5-815(2)) — good faith under the terms and purposes (§15-5-801), loyalty (§15-5-802), impartiality (§15-5-803) and prudence (§15-5-804).

The specific powers

Section 15-5-816 lists specific powers a trustee may exercise in addition to the general ones. They read like a working list of what an administration needs:

• Collect trust property and accept or reject additions to it (C.R.S. §15-5-816(1)(a)).
• Acquire or sell property, for cash or on credit, at public or private sale (§15-5-816(1)(b)).
• Exchange, partition, or otherwise change the character of trust property (§15-5-816(1)(c)).
• Deposit trust money in a regulated financial institution (§15-5-816(1)(d)); borrow, and mortgage or pledge trust property (§15-5-816(1)(e)); repair and improve real property (§15-5-816(1)(h)); insure the trust property (§15-5-816(1)(k)).
• Pay taxes, assessments, the trustee's compensation and the other expenses of administration (§15-5-816(1)(o)), and hold a security in a nominee's name without disclosing the trust, keeping records that show it is the trust's (§§15-5-816(1)(g)(II), 15-5-810(3)(b)).
• On termination, exercise the powers appropriate to wind up the administration and distribute the trust property to the persons entitled to it (§15-5-816(1)(z)).

Discretion, and the standard that governs it

Whatever words of discretion the trust uses — "absolute", "sole" or "uncontrolled" — a trustee exercises a discretionary power in good faith, within the trust's terms and purposes and the beneficiaries' interests (C.R.S. §15-5-814(1)(a)). Where a trust gives a trustee unlimited discretion, a court may not find that the trustee abused it merely because the court would have exercised it differently (§15-5-814(1)(b)).

Unless the terms expressly provide otherwise, a trustee who is also a beneficiary (other than the settlor) makes discretionary distributions to themselves only in accordance with an ascertainable standard, and no trustee uses a discretionary power to satisfy a support obligation the trustee personally owes (C.R.S. §15-5-814(2)); such a power may be exercised by the other trustees, or by a special fiduciary the court appoints (§15-5-814(3)).

Delegation and cotrustees

A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate, using reasonable care, skill and caution in selecting the agent, setting the scope and terms of the delegation, and periodically reviewing the agent's work; a trustee who does so is not liable for the agent's decisions or actions (C.R.S. §15-5-807).

Cotrustees who cannot agree unanimously may act by majority, and a trustee may not delegate to a cotrustee a function the settlor reasonably expected the trustees to perform jointly (C.R.S. §15-5-703). A trustee who does not join in another trustee's action is not liable for it, except that each uses reasonable care to prevent a cotrustee's serious breach of trust (§15-5-703(6), (7)).

Directed trusts: when someone else holds a power of direction

Some Colorado trusts give a trust director — someone other than the trustee — a power of direction over investments, distributions or other matters (C.R.S. §15-16-806). A directed trustee takes reasonable action to comply with the director's exercise of the power and is not liable for doing so, except where complying would be willful misconduct (§15-16-809). Unless the terms provide otherwise, a directed trustee has no duty to monitor the director or to advise anyone about an instance in which the trustee might have acted differently (§15-16-811).

Decanting: moving property to a second trust

Colorado's Uniform Trust Decanting Act lets an authorized fiduciary, in the circumstances it allows, distribute property of one trust to a second trust. The fiduciary gives notice in a record not later than 63 days before exercising the power — to a living settlor, the qualified beneficiaries, holders of presently exercisable powers of appointment, the persons who may remove the fiduciary, the other fiduciaries and, where required, the Attorney General — with copies of both instruments (C.R.S. §15-16-907). Decanting is firm-lane work; this page explains it.

Dealing with banks and title companies: the certification of trust

Institutions want to know that the trust exists and that the trustee may act. Instead of the trust instrument, a trustee may give a certification of trust stating the facts the statute lists: the trust's existence and the date it was executed, the settlor, the acting trustee's identity and address, the trustee's powers in the pending transaction, whether it is revocable and who may revoke it, how cotrustees sign and whether all must act, and the name in which title may be taken. Any trustee may sign it; it states that the trust has not been revoked or amended so as to make it incorrect, and it need not contain the dispositive terms (C.R.S. §15-5-1013).

A person who relies on a certification in good faith is protected, and one who demands the whole instrument in addition, in bad faith, is liable for costs, expenses, attorney fees and damages (C.R.S. §15-5-1013(6)–(8)).

When a licensed Colorado attorney is the right next call

TrusteeClear explains the powers and, for a trustee using it directly, places the trustee's own answers into the certification of trust; it does not give legal advice or say whether a particular power reaches a particular act. Many trustees consult a licensed Colorado attorney of their choosing before selling real property, borrowing against trust property, a distribution to themselves, a decanting, or any transaction that touches their own interests (C.R.S. §15-5-802).