The Powers and Rights of Trustees

• Author: Eileen E. Gillese, Martha Milczynski
• Pages: 157-166

157

CHAP TER 10

THE POWERS AND

RIGHTS OF TRUSTEES

A. INT RODUCTION

In chapter 9, we explored the duties that trustees must fulf‌il. In this

chapter we explore the powers that trustees need to carry out those

duties effectively and eff‌iciently. It will be re adily apparent that both

duties and powers are needed for a trust to f unction and that the two

are interrelated. For example, a tru stee may be under an expres s duty

to act, but be given a power to not perform the act.

EXAMPLE: X dies, leaving a w ill in which he direct s his trustee to sell the

family home and to hold the assets i n trust for his child ren. 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 until an appropr iate

point in time. For those concerned about giving too much discretion to

the trustee, t he power could have been circumscribed; for example, by

stipulating th at the power lasted for a set period of time, or was to be

exercised in light of the child ren’s needs.

The interrelationship between duties and powers i s 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 clearly specif‌ied.

Trustees receive powers from two sources: expre ss grant and stat-

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