800.228.2581 MHM.INC Now more than ever people want self-service options. With our core integrated ITMs we can make this a reality both in the lobby and in the drive-up of your branch. SELF-SERVICE BANKING Although a trustee’s hiring of experts was not specifically addressed in the court’s opinion, this serves as a lesson to employ necessary experts to assist with trust administration – and then follow their advice and instructions. Many complicated issues arise in a trust administration, for which third party experts (accountants, attorneys, etc.) can provide advice. Of course, the next step after receiving such advice is to follow that advice when appropriate. Leave Your Emotions at the Door Above all, when there are two or more beneficiaries, the trustee must act impartial between them. In re Est. of Stuchlik, 289 Neb. 673, 688 – 90, 857 N.W.2d 57, 69 – 71 (2014), opinion modified on denial of reh'g, 290 Neb. 392, 861 N.W.2d 682 (2015). This includes impartiality in investing, managing, and distributing trust property, while also giving due regard to the beneficiaries’ respective interests. Id. at 70. This impartiality is not just an objective standard of equality, but must be determined from the settlor’s intent, as reflected in the terms, purposes, and circumstances of the trust. Id. at 70. Nebraska courts, which have cited to the comments to the Restatement (Third) of Trusts, have explained that this, unfortunately, can be complicated by the difficulty of determining the relevant aspects of the settlor’s intent. Id. In general, impartiality means that a trustee’s treatment or conduct in administering a trust should not be “influenced by the trustee’s personal favoritism or animosity toward individual beneficiaries.” Id. While a corporate trustee may feel immune from the difficulties that a family member trustee might experience regarding impartiality, a corporate trustee (or, at least a trust officer or advisor) is human. If one beneficiary is more difficult or abrasive than another, even the most professional trustee could find themselves feeling animosity toward that beneficiary. The best course is to go back to the trust document and remain as impartial as possible – documenting decisions as necessary. And difficulties are not unheard of with trusts, especially family disputes. See, e.g., In re William R. Zutavern Revocable Trust, 309 Neb. 542 (2021). Therefore, here are some tips for corporate trustees: • Review the Trust Code every so often; • Keep updated on recent legal developments; • Review each trust document for the trusts you are handling, and familiarize yourself with the trust terms, trust property, the beneficiaries, and family dynamics; • Document your conversations with beneficiaries, when possible and as necessary; • Utilize experts as needed, including tax experts, legal counsel, or others. NEBRASKA BANKERS ASSOCIATION 19
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