Some factors to consider when choosing a trustee
Bermuda has a sterling reputation as a leading offshore jurisdiction in which to develop trust and wealth structures for both local and overseas persons.
Bermuda trusts can achieve a wide variety of personal, estate, financial and tax planning objectives.
Trusts are particularly useful for families who, among other things, may require protection against creditors or spendthrift family members. They can also provide for the future care of special needs children, safeguard assets for future generations, reduce claims against an estate, minimise tax liability and provide asset confidentiality.
Bermuda trusts are most commonly administered by public and private trust companies (i.e. corporate trustees), or by professional or non-professional trustees. However, families often select an individual who is a relative, trusted friend or personal adviser (i.e. an individual who is not licenced and who will not be paid for his services) to serve as trustee of their family trust. This is generally because it is less costly, more convenient or because the individual has the confidence of the family.
In some cases, such trustees do not meet the qualifications required by regulatory bodies and can act without obtaining a license or demonstrating any special skills, aptitude or experience to anyone outside the family. This is the case even where the family trust holds substantial, complex or diversified assets.
Creators of family trusts should be aware of the duties and responsibilities that are imposed upon trustees. Some are created by the trust deed, while other duties and responsibilities are set out in statute or derived from common law (e.g. duty to become fully acquainted with the terms and conditions of the trust, obey the terms of the trust, act in the best interests of the beneficiaries, avoid conflict of interest, not to profit from the trust, invest, account for the assets, act impartially and administer the trust personally).
When contemplating whether to name one or several individual trustees, a corporate trustee or a combination of the two, there are several factors to consider, including experience, objectivity, and continuity.
Corporate trustees generally have professionally trained and experienced people to administer trusts for example, in the areas of general administration, investing and reporting because that is the professional service they provide to clients. Additionally, corporate trustees understand how assets should be managed and distributed in order to best minimise tax and other forms of liability.
Non-professional individual trustees rarely possess this skill set, but could serve with the support of a financial advisor, professional trustee family office or in collaboration with professional service providers who in combination could provide an administrative and investment system to assist the individual trustee.
Objectivity is another advantage enjoyed by a corporate trustee, which sits as an outsider and benefits from being a disinterested party that can make decisions free from family dynamics, bias and internal conflict. While a carefully drafted trust deed and letter of wishes sets out the settlors’ intentions, directions and wishes, it can be difficult for an individual trustee who is a relative, trusted friend or personal advisor to act objectively.
Continuity for the life of the trust is also best achieved by the appointment of a corporate trustee. An individual trustee may die, or their ability to act as a trustee could be interrupted due to a change in lifestyle, career, geography, health, age, motivation, or family commitments. The retirement of an individual trustee, and the appointment of his replacement, can lead to unnecessary expense as well as disruption to the trust structure. When appointing a trustee, you should ensure that as the family dynamics change your trustee will continue to be available and active in changing circumstances.
Appointing the right trustee is extremely important in estate planning, as trustees have significant duties and frequently face challenges when carrying out those duties.
Appointing an unsuitable trustee could lead to unnecessary risks, expense and disruption to the trust structure and its underlying assets. Any decision requires careful analysis.
By choosing a corporate trustee, you can ensure that current and future generations benefit from the experience, objectivity, continuity and professionalism that a regulated organisation provides.
Conversely, appointing an individual trustee, rather than a corporate trustee provides a more personalised and economical service with flexible decision making, and its limitations could be minimised through access to the resources of a corporate trustee.
Before appointing a trustee, it is advisable to consult with a lawyer expert in the area to determine whether individual trustees, a corporate trustee or a co-trustee arrangement between an individual and corporate trustee is best for you.
Seth Darrell is a Lawyer with Appleby (Bermuda) Limited and is currently with the Private Client and Trusts Practice Group headed by Vanessa Lovell Schrum. A copy of this column is available on the firm’s web site at www.applebyglobal.com.
This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.