Повноваження управителя у Массачусетсі

The general powers

G.L. c. 203E, § 815(a) provides that a trustee, without authorization by the court, may exercise the powers conferred by the terms of the trust or, except as the terms limit them, 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 the code confers. The exercise of a power is subject to the fiduciary duties the code prescribes (§ 815(b)) — good faith, loyalty, impartiality and prudence (§§ 801, 802, 803, 804).

The specific powers

Without limiting the general powers, G.L. c. 203E, § 816 lists what a trustee may do: collect trust property and accept or reject additions; acquire or sell property, for cash or on credit, at public or private sale; exchange or partition property; deposit money in a regulated financial service institution; borrow and mortgage or pledge; continue a business; exercise an owner's rights over securities, including holding a security in a nominee's name; build, repair, subdivide and develop real property; lease, including for natural resources; grant and acquire options; insure the property, the trustee, the trustee's agents and the beneficiaries; abandon property of no or insufficient value; address environmental liability; pay or contest and settle claims; pay taxes, the trustee's compensation and other expenses; make tax elections; select payment modes under benefit plans, annuities and insurance payable to the trustee; make loans, including to a beneficiary, and pledge trust property to guarantee a loan to a beneficiary; appoint a trustee for property in another jurisdiction; pay a beneficiary under a disability through a conservator, a guardian, a custodian, an adult relative or a separate fund; distribute in divided or undivided interests; resolve disputes by mediation or arbitration; prosecute or defend actions; sign and deliver instruments; establish or continue title-holding entities, including nominee trusts; and wind up on termination.

• Sell, exchange, borrow against, improve, lease and insure property — G.L. c. 203E, § 816(2), (3), (5), (8), (9), (11).
• Settle claims, pay expenses and taxes, make tax elections — G.L. c. 203E, § 816(14), (15), (16).
• Make loans, including to a beneficiary, with a lien on future distributions for repayment — G.L. c. 203E, § 816(18).
• Pay a beneficiary under a legal disability through a conservator, a guardian, a custodian or a separate fund — G.L. c. 203E, § 816(21).
• Hold legal title through title-holding entities, including nominee trusts, without recording or making public the terms of the trust — G.L. c. 203E, § 816(26).

Discretion, and the standard that governs it

Notwithstanding the broad 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 (G.L. c. 203E, § 814(a)). Unless the terms expressly say otherwise, a beneficiary-trustee other than the settlor may make discretionary distributions for the trustee's personal benefit only under an ascertainable standard — one relating to health, education, support or maintenance (§ 103) — and no trustee exercises a discretionary power to satisfy a support obligation the trustee personally owes; a majority of the other trustees, or a special fiduciary the court appoints, may exercise such a power (§ 814(b), (c)), with the exceptions § 814(d) states for a power the settlor's spouse holds as trustee of a trust for which a marital deduction was previously allowed and for any period during which the settlor may revoke or amend the trust. A trustee who acts in reasonable reliance on the terms as expressed in the trust instrument is not liable for a breach to the extent it resulted from the reliance (§ 1006).

Delegation and co-trustees

A trustee may delegate duties and powers if it is prudent to do so, exercising reasonable care, skill and caution in selecting the agent, establishing the scope and terms of the delegation and periodically reviewing the agent's actions; a trustee who complies is not liable to the beneficiaries or the trust for the agent's action, and the agent owes the trust a duty of reasonable care to comply with the terms of the delegation (G.L. c. 203E, § 807). Investment and management functions are delegated the same way under the Massachusetts Prudent Investor Act (G.L. c. 203C, § 10). Co-trustees unable to reach a unanimous decision may act by majority decision — a rule that does not reach an instrument executed before July 8, 2012; a co-trustee may properly delegate a function to another trustee; and a trustee who does not join in an action is not liable for it, but each trustee exercises reasonable care to prevent a co-trustee's breach of trust and to compel its redress (G.L. c. 203E, § 703).

Powers to direct

While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust (G.L. c. 203E, § 808(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 an exercise of the power unless the attempted exercise is manifestly contrary to the terms or the trustee knows it would constitute a serious breach of a fiduciary duty the holder owes the beneficiaries (§ 808(b)). A person who holds a power to direct is presumptively a fiduciary required to act in good faith with regard to the trust's purposes and the beneficiaries' interests, and is liable for any loss that results from a breach of a fiduciary duty (§ 808(c)). Massachusetts has no directed trust act; beyond the section's text, the common law of trusts and principles of equity supplement the code (§ 106).

Nominee trusts, combining and dividing, and a second trust

A trustee may establish or continue title-holding entities, including so-called "nominee trusts", to hold legal title to any portion or all of the trust property without the need to record or make public the terms of the trust (G.L. c. 203E, § 816(26)), and may hold a security in the name of a nominee or in another form without disclosure of the trust, so that title may pass by delivery (§ 816(7)(ii)). After notice to the qualified beneficiaries, 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 trusts (§ 417). Massachusetts has no decanting statute: 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 (§ 106), and one for a licensed Massachusetts 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 or otherwise authenticate and whether all or less than all are required to exercise powers of the trustee, the trust's taxpayer identification number, and the manner of taking title to trust property (G.L. c. 203E, § 1013(a)). Any trustee may sign or otherwise authenticate it; 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 (§ 1013(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 (§ 1013(e)). A person who acts in reliance on it without knowledge that its representations are incorrect is not liable for so acting, and a person who in good faith enters into a transaction in reliance on it may enforce the transaction against the trust property (§ 1013(f), (g)); a person other than a beneficiary who in good faith deals with a trustee need not inquire into the extent of the trustee's powers or the propriety of their exercise (§ 1012(b)). For land a nontestamentary trust owns, a trustee's certificate of record, sworn or under the penalties of perjury, is a separate instrument an attorney prepares (G.L. c. 184, § 35).

When a licensed Massachusetts 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 (G.L. c. 203E, § 802), whether a nominee arrangement or a second trust suits the administration, and what a certification should say for a particular transaction are questions a licensed Massachusetts attorney of your choosing answers. TrusteeClear places your own answers to the statute's items into the certification's blanks — the taxpayer identification number stays a blank you write in by hand — and reviews nothing.