Serving as trustee is not merely an honorary role. A trustee assumes all responsibility for proper trust administration. It is the rare instance that a family member trustee understands the entirety of the language of the trust and is aware of trustee obligations imposed by law. When a family member serves as trustee and is of the mind that the family has always avoided conflict and is in agreement as to trust administration, a trustee declining legal advice is placing inordinate faith in the prospect that circumstances will not change, given that should they change the trustee–and not the family members–will bear the consequences. Virtually every trust attorney has been exposed to family conflict–on the first occasion–when money is involved (even small amounts of money). The prospect of conflict increases when spouses are part of the equation. If difficulties do develop, that fact that the trustee did not from the outset proceed cautiously can exacerbate the situation. Given that fees are paid from the trust, forgoing legal advice on the part of the person solely responsible for proper trust administration is generally considered unwise. In a worst-case scenario, a trustee is challenged after making trust distributions, and is without trust funds to defend him- or herself from allegations of misfeasance (or malfeasance). Obtaining legal advice is akin to purchasing insurance–while we hope events will proceed according to plan, we are glad we purchased insurance if they do not. In summary, a trustee minimizing the need to satisfy trust formalities essentially is putting him- or herself personally at financial risk should events transpire differently than he or she anticipates.
