The Common Law did not distinguish particularly between revocable and irrevocable trusts.[1] The Treatises, however, uniformly hold that remaindermen of revocable trusts do not have any right to an accounting or other remedies as long as the settlor remains competent. According to Bogert[2]:
Given that a settlor’s power of revocation is the equivalent of ownership of the assets subject to the power, the duties of a trustee of a revocable trust are owed exclusively to the settlor, and the trustee cannot be held liable for conduct knowingly approved by a competent settlor that otherwise would be actionable. As a result, at least while the settlor is competent, the trustee of a revocable trust, while clearly subject to normal fiduciary duties to the settlor, is not accountable to, and is under no duty to provide information about the trust to, non-settlor beneficiaries.
This view that the trustee of a revocable trust has an exclusive duty to the settlor and no others is supported by the Restatement (Third) of Trusts: “Furthermore, as long as the settlor (of a revocable trust) has capacity to understand and evaluate information provided by the trustee regarding the administration of the trust, the trustee of a revocable trust is not to provide reports or accountings or other information concerning the terms or administration of the trust to other beneficiaries without authorization either by the settlor or in the terms of the trust or a statute.”[3]
A recent Kentucky case, relying on Kentucky statute, held that the trustees of a revocable trust had a duty to inform remaindermen that the remaindermen were being changed due to a modification to the trust which modification, not incidentally, also replaced the trustee giving notice.[4] That case drew strong criticism as being counter to existing law.[5]
The Uniform Trust Code codifies a trustee’s duty to inform a beneficiary. It limits the pool of beneficiaries entitled to information to “qualified beneficiaries” which is defined as beneficiaries either entitled to current distributions or those considered “first-line remaindermen.”[6] The qualified beneficiaries are to be kept reasonably informed and the UTC spells out the scope of the information that is to be provided.[7]
The Uniform Trust Code backstops the duty to inform by making these provisions part of the mandatory, non-modifiable, rules governing trusts regardless of the terms of a specific trust.[8] The Uniform Trust Code, however, makes this an optional mandatory rule that may be somewhat modified on a state-by-state basis.[9] The Maryland Trust Code follows the Uniform Trust Code and makes the provisions part of the non-modifiable, mandatory rules for trusts.[10]
[1] Indeed, a trust that is silent as to revocability is presumed irrevocable under the common law. Liberty Trust Co. v. Weber, 200 Md. 491, 90 A.2d 194 (1952).
[2] George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 964 (2011) (emphasis added).
[3] Restatement (Third) of Trusts, §74 (2003).
[4] JP Morgan Chase Bank, N.A. v. Longmeyer, 275 S.W.3d 697 (Ky. 2009).
[5] Turney P. Berry, David M. English & Dana G. Fitzsimons, Longmeyer Exposes (or Creates) Uncertainty About the Duty to Inform Remainder Beneficiaries of a Revocable Trust, 35 ACTEC L.J. 125 (2009).
[6] UTC § 103, cmt.
[7] UTC § 813. The Maryland Trust Act follows suit. See § 14.5-103 and § 14.5-813 of the Maryland Trust Code.
[8] UTC § 105(b) sets out the non-modifiable terms. For qualified beneficiaries the non-modifiable term is only regarding those beneficiaries 25 years of age or older.
[9] See Kevin D. Millard, The Trustee’s Duty to Inform and Report Under the Uniform Trust Code, 40 Real Prop. Prob. & Tr. J. 373 (Summer 2005) (“The intention between the concept of information and reporting is a fundamental duty of the trustee and the desire of some settlors to limit or eliminate information and reporting has led to controversy over the information and reporting provisions in the UTC.”) Mr. Millard sets out some of the state variations to the duty to inform. Also see David M. English, The Uniform Trust Code (2000): Significant Provisions and Policy Issues, 67 Mo. L. Rev. 143, 202 (2002) (“The most discussed issue during the drafting of the UTC and subsequent to its approval is the extent to which a settlor may waive the ‘… disclosure requirements.'”) Professor English was the reporter for the UTC.
[10] Maryland Trust Code, § § 14.5-106, 14.5-813 A.
