Полномочия управляющего в Теннесси

Where a Tennessee trustee's powers come from

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 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 any other powers the code confers (Tenn. Code Ann. § 35-15-815(a)). The exercise of every power is subject to the fiduciary duties of Part 8 (Tenn. Code Ann. § 35-15-815(b)).

So a power has three sources — the instrument, the owner's powers the statute supplies, and the specific list — and one limit: the duties. A trustee rarely needs a court's permission to act; the trustee needs a reason that fits the trust's terms and purposes and the beneficiaries' interests, and a record that shows it.

The § 35-15-816 list, grouped

Unless the terms of the instrument expressly provide otherwise, and without limiting the general powers, a trustee may do what the statute lists (Tenn. Code Ann. § 35-15-816(b)). An instrument that incorporates by reference the powers listed in Tenn. Code Ann. § 35-50-110 incorporates, as to a trustee, the powers of § 35-15-816 (§ 35-15-816(a)). Grouped by what they are for:

• Property in and out: collect trust property and accept or reject additions; acquire or sell property, for cash or on credit, at public or private sale; exchange, partition or change its character; abandon property of no or insufficient value (§ 35-15-816(b)(1)–(3), (12)).
• Money and credit: deposit trust money in a regulated financial-service institution; borrow, with or without security, and mortgage or pledge trust property for a term beyond the trust's; make loans, including to a beneficiary on fair and reasonable terms with a lien on future distributions; pledge trust property to guarantee loans to a beneficiary (§ 35-15-816(b)(4), (5), (18), (19)).
• Businesses and securities: continue a business and take any action an owner may — merging, dissolving, changing its form, contributing capital; exercise an absolute owner's rights over securities, including voting, proxies, nominee title, calls and assessments, subscription and conversion rights, and depositories (§ 35-15-816(b)(6), (7)).
• Real estate: build, repair, alter or demolish; subdivide, develop, dedicate land or grant easements, make or vacate plats and adjust boundaries; lease as lessor or lessee, natural-resource leases included, for a term beyond the trust's; grant or acquire options (§ 35-15-816(b)(8)–(10)).
• Protection: insure the property, and the trustee, the trustee's agents and the beneficiaries against liability; inspect for and remedy environmental conditions, or decline or disclaim burdened property; pay, contest, settle or release claims; prosecute or defend actions; resolve disputes by mediation or arbitration (§ 35-15-816(b)(11), (13), (14), (23), (24)).
• Taxes, expenses and benefits: pay taxes, assessments, the trustee's compensation and the administration's expenses; make tax elections; select the mode of payment under a retirement plan, annuity or life policy payable to the trustee and collect it (§ 35-15-816(b)(15)–(17)).
• Distribution and the end: pay a share for a beneficiary under a legal disability or reasonably believed incapacitated in the ways the statute lists; distribute in divided or undivided interests, in proportionate or disproportionate shares, adjusting for valuation and basis; appoint a trustee for property in another jurisdiction; sign the instruments the powers need; and wind up and distribute on termination (§ 35-15-816(b)(20)–(22), (25), (26)).

What the instrument can change, and what it cannot

Except as the terms provide otherwise, the code governs a trustee's duties and powers and the beneficiaries' rights; the terms may expand, restrict, eliminate or otherwise vary them, and courts give maximum effect to freedom of disposition and to the enforceability of trust instruments (Tenn. Code Ann. § 35-15-105(a)). A power the instrument grants in the broadest words is still a fiduciary power.

The terms prevail over the code except for the items the statute reserves, among them the requirements for creating a trust; the duty to act in accordance with the terms and purposes of the trust and the interests of the beneficiaries; the requirement that the trust be for the beneficiaries' benefit with a lawful, possible purpose; the court's powers over modification and termination, bonds and unreasonable compensation; the effect of an exculpatory term; the rights of third parties who deal with the trustee; and the periods of limitation (Tenn. Code Ann. § 35-15-105(b)). A term relieving a trustee of liability is unenforceable for a breach committed in bad faith or with reckless indifference to the trust's purposes or the beneficiaries' interests, and an exculpatory term the trustee drafted or caused to be drafted is invalid unless the trustee proves it fair under the circumstances and its existence and contents adequately communicated to the settlor (Tenn. Code Ann. § 35-15-1008).

The duties every power answers to

Every power is exercised in good faith, in accordance with the terms and purposes of the trust and the interests of the beneficiaries (Tenn. Code Ann. § 35-15-801); solely in the beneficiaries' interests, a transaction for the trustee's own account or affected by a conflict being voidable, with a conflict presumed for the trustee's spouse, descendants, siblings, parents, agent or attorney and an enterprise the trustee has an interest in (Tenn. Code Ann. § 35-15-802); impartially, with due regard to the beneficiaries' respective interests (Tenn. Code Ann. § 35-15-803); and as a prudent person would, with reasonable care, skill and caution (Tenn. Code Ann. § 35-15-804), with costs reasonable in relation to the property, the purposes and the trustee's skills (Tenn. Code Ann. § 35-15-805) and any special skills used (Tenn. Code Ann. § 35-15-806).

The power to sell does not answer whether to sell, for how much or to whom; the duties do. A sale to a relative of the trustee, a loan to the trustee's business or a lease to the trustee's own company is a conflict the statute presumes, whatever power the instrument grants.

Discretionary distributions (§ 35-15-814)

Tennessee classifies a distribution interest as mandatory, support or discretionary by the instrument's words (Tenn. Code Ann. § 35-15-103(11)). A discretionary interest is neither a property interest nor an enforceable right but a mere expectancy; a court may review the trustee's distribution discretion only where the trustee acts dishonestly, acts with an improper motive or fails to act when under a duty to, a reasonableness standard does not apply, and outside those three cases and the beneficiary-trustee limits a court has no jurisdiction to review the discretion or force a distribution (Tenn. Code Ann. § 35-15-814(b)(1)–(4)). Where the language permits unequal distributions or distributions to the exclusion of others, the trustee may distribute everything to one beneficiary, absent express language to the contrary (§ 35-15-814(b)(5)).

An improper motive includes a beneficiary-trustee who refuses or limits distributions to others out of self-interest, or who distributes to itself beyond an ascertainable standard that restricts it (Tenn. Code Ann. § 35-15-814(a)(1)). Unless the trust provides otherwise, a trustee of a support trust that names the settlor's living spouse considers the spouse's resources, including the settlor's obligation of support, before distributing; in every other case the trustee need not consider a beneficiary's resources (§ 35-15-814(a)(2)). A mandatory or support interest is an enforceable right, and the decision is reviewable for unreasonableness as well (§ 35-15-814(c)).

A trustee who is also a beneficiary

Unless the terms expressly say the rule does not apply, a person other than the settlor who is both a beneficiary and a trustee, holding a power to make discretionary distributions for the trustee's own benefit, may exercise it only in accordance with an ascertainable standard, and no trustee may use a discretionary power to satisfy a legal obligation of support the trustee personally owes another person (Tenn. Code Ann. § 35-15-814(d)). A power so limited may be exercised by a majority of the remaining trustees whose power is not limited, and where every trustee is limited the court may appoint a special fiduciary to exercise it (§ 35-15-814(e)). The limits do not apply to a power held by a settlor's spouse as trustee of a trust for which a marital deduction was allowed, to a trust while its settlor may revoke or amend it, or to a trust whose contributions qualify for the federal gift-tax annual exclusion as a trust for a minor (§ 35-15-814(f)).

Cotrustees, delegation and directed trusts

Cotrustees who cannot agree unanimously may act by majority; after a vacancy the remaining cotrustees may act; each participates in the trustee's functions unless unavailable or properly delegated, and none may delegate to another a function the settlor reasonably expected them to perform jointly (Tenn. Code Ann. § 35-15-703(a)–(e)). Each exercises reasonable care to prevent a cotrustee's serious breach and to compel its redress, and a dissenting trustee who joins at the majority's direction after giving notice of the dissent is not liable unless the action is a serious breach (§ 35-15-703(g), (h)).

A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate, with reasonable care in selecting the agent, setting the scope and terms and periodically reviewing the agent's actions (Tenn. Code Ann. § 35-15-807), and investment and management functions under the Uniform Prudent Investor Act on the same terms (Tenn. Code Ann. § 35-14-111). Where the terms, a nonjudicial settlement agreement or a court order give a trust advisor or trust protector one of the powers the statute lists, the trustee required to follow a direction is an excluded fiduciary (Tenn. Code Ann. §§ 35-15-1201, 35-15-710), acts in accordance with the direction (Tenn. Code Ann. § 35-15-808(b)), has no duty to review, monitor, advise or warn (Tenn. Code Ann. § 35-15-1204) and is not liable for a loss from compliance (Tenn. Code Ann. § 35-15-1205).

Third parties, the certification of trust and personal liability

A person other than a beneficiary who in good faith assists a trustee, or in good faith and for value deals with one, without knowledge that the trustee is exceeding or improperly exercising the trustee's powers, is protected as if the trustee had properly exercised the power; such a person need not inquire into the extent of the powers or the propriety of their exercise, and a person who delivers assets to a trustee need not ensure their proper application (Tenn. Code Ann. § 35-15-1012(a)–(c)). Instead of the instrument, the trustee may furnish a certification of trust — nine items, the trustees' signatures and a notary's attestation, the identification number only if essential to the transaction (Tenn. Code Ann. § 35-15-1013).

A trustee is not personally liable on a contract properly entered into in the fiduciary capacity if the trustee disclosed that capacity; an obligation arising from ownership or control of trust property is enforceable against the trust property alone; and a trustee is personally liable for a tort committed in the course of administering the trust only for the trustee's own willful misconduct proven by clear and convincing evidence (Tenn. Code Ann. § 35-15-1010).

When a trustee leaves office

Unless a cotrustee remains or the court orders otherwise, a trustee who has resigned or been removed keeps the duties of a trustee and the powers necessary to protect the trust property until it is delivered, and delivers it within a reasonable time to the cotrustee, the successor or the person entitled to it; before delivering, the departing trustee may petition the court to approve its accountings and for a release and discharge (Tenn. Code Ann. § 35-15-707). Where the trust holds real estate, the change is recorded in each county where a parcel lies (Tenn. Code Ann. § 35-1-101), and a person who deals in good faith with a former trustee without knowing the trusteeship ended is protected (Tenn. Code Ann. § 35-15-1012(d)).

The ways trustees exceed their powers

A violation of a duty the trustee owes a beneficiary is a breach of trust, and the court's remedies run from compelling performance, an injunction and an order to account to payment or restoration, a special fiduciary, suspension, removal, reduced or denied compensation, and voiding the act or tracing the property (Tenn. Code Ann. § 35-15-1001). The usual paths there:

• A sale, loan or lease between the trust and the trustee, a relative or the trustee's business (Tenn. Code Ann. § 35-15-802).
• A beneficiary-trustee's distributions to itself beyond the ascertainable standard (Tenn. Code Ann. § 35-15-814(d)).
• Trust money in the trustee's own account, or records nobody can follow (Tenn. Code Ann. § 35-15-810).
• An agent hired and never reviewed (Tenn. Code Ann. § 35-15-807).
• A cotrustee's serious breach watched and not opposed (Tenn. Code Ann. § 35-15-703(g)).

When a licensed Tennessee attorney is the right next call

A sale of the family home over a beneficiary's objection, a transaction the statute presumes conflicted, a discretionary distribution a beneficiary disputes, a direction from a trust protector the trustee doubts, or a question whether the instrument's words override a default rule — each turns on the instrument and the facts as much as on the statute. TrusteeClear organizes the record of what the trustee did and why; the legal judgment belongs to a licensed Tennessee attorney of the trustee's choosing.