 Must be “interested person”  Beneficiary  Trustee  Attorney general (charitable trusts)  Others affected by the trust?

 Must determine under state law the parties who MUST be involved with the lawsuit.  Note that you may wish to involve other parties to get them bound to the judgment.

 Must bring lawsuit in a court which has jurisdiction over the trust.  Inter vivos vs. testamentary?  Amount involved?  Court system in state  Court system in county

 Must bring lawsuit in county with proper venue.  County of trustee’s residence?  County of situs of trust administration?  County of beneficiary’s residence?  County where breach occurred?  Different for individual and corporate trustees?  Different for multiple trustees?

 Can an order binding a party bind non- parties?  Bind guardian, bind ward (minor or incompetent)?  Bind parent, bind minor child?  Bind person with substantially similar interest to a party if no conflict of interest.

 Any profit through or arising out of the administration of the trust.  Exception for trustee’s compensation

 1. Lost value to trust  Causation required  No requirement that trustee personally benefited

 2. Profit made by trustee  Causation required  No requirement that trust have suffered a loss

 3. Lost profits  Causation required  Difficult to show

 4. Punitive damages  “[A]n intentional breach of a fiduciary duty is a tort justifying the award of exemplary damages.”

 Typical grounds:  Embezzlement  Mismanagement  Trustee becomes incompetent  Trustee becomes insolvent  For other cause, in the discretion of the court

 Used if trustee threatens to commit a breach of trust.  If trustee does not obey, punishable as contempt.

 Used when court fears trustee will not obey injunction.  “Receivership is an extraordinary harsh remedy and one that courts are particularly loathe to utilize.”

 Court may determine any question arising during the administration of a trust.

 Depends on state law

 1. Knowledge  New trustee knows (subjective)  New trustee should know (objective) Plus  2. Improper Conduct  e.g., not sue prior trustee

 Goal = recover actual trust property from trustee or non-BFP.  Double recovery (money and property) not allowed.  What is the key benefit of the tracing remedy?

Trustee’s $Trust’s $Acc’t Balance Opening Balance (that is, before Trustee turns evil) 5000

Trustee’s $Trust’s $Acc’t Balance Opening Balance5000 Trustee embezzles $

Trustee’s $Trust’s $Acc’t Balance Opening Balance5000 Trustee embezzles $ Trustee withdraws $

Trustee’s $Trust’s $Acc’t Balance Opening Balance5000 Trustee embezzles $ Trustee withdraws $ Trustee withdraws $

Trustee’s $Trust’s $Acc’t Balance Opening Balance5000 Trustee embezzles $ Trustee withdraws $ Trustee withdraws $ Trustee deposits income tax refund of $

Trust Property 1. Trustee embezzles $1, Trustee uses money to pay secured/priority creditor Trustee’s Secured/Priority Creditor 3. Beneficiary is subrogated to rights of “paid off” creditor 4. B uses rights of creditor against Trustee and Trustee’s other creditors

 A creditor with the right to recover from several funds/items, must first resort to fund/item not subject to the rights of another creditor who has recourse to only one of the funds/items.

Example  Trustee personally owns two assets:  Asset A = $10,000  Asset B = $6,000  Beneficiary has claim for $5,000 against Asset A via subrogation due to Trustee’s embezzlement; no claim against Asset B  Creditor has priority claim against both assets totaling $10,000.

 Beneficiary has misappropriated or otherwise wrongfully dealt with trust property.

 Consented to breach  Participated in breach  Agreed to be liable for trustee’s breach

 E.g., beneficiary promises to add his/her own property to the trust and then fails to do so.

 Party who breaches contract with trust.  Tortfeasor who damages trust property.  Etc.

 The settlor may waive anything except if:  1. Illegal  2. Against public policy  3. Not waivable under state trust law

 Requirements for valid release:  Legal capacity  Full information  Written  Not under threat (e.g., “no money unless you sign”)

 The “last hope”

 Typically, does not run from date of breach.  Does discovery rule apply?

 Unreasonable delay in asserting rights to disadvantage of defendant  E.g., a good faith change in position.