The Powers and Rights of Trustees

• Author: EILEEN E. GILLESE
• Pages: 168-177

168

CH AP TER 10

THE POWERS AND

RIGHTS OF TRUSTEES

A. INTRODUCTION

Chapter 9 explored the duties that trustees must fulf‌il. In t his chapter

I explore the powers that tr ustees need to carr y out those duties ef-

fectively and eff‌iciently. It will be readily apparent that both duties and

powers are needed for a trust to function and t hat the two are inter-

related. For example, a trustee may be under an express duty to act but

be given a power to not perform the act.

EXAMPLE: X dies, leaving a w ill in which he directs his tr ustee to sell the

family home and to hold the assets in tr ust for his children. The trustee is

given the power to postpone sale.

Although the trustee is under a duty to sell, the power to postpone

gives the trustee the f‌lexibility to postpone sale unt il an appropriate

point in time. For those concerned about giving too much di scretion

to the trustee, the power could have been circumscribed, for exa mple,

by stipulating that t he power lasted for a set period of time, or was to be

exercised in light of the chi ldren’s needs.

The interrelationship between duties and p owers is complex. At the

time of creation of a trust, it is important that appropriate powers are

given to the trustee s and that their duties are clea rly specif‌ied.

Trustees receive powers from two sources: express grant and stat-

ute. At one time, it was thought that trustees had implied powers as

well. Implied powers were thought to be those necessary to enable a