TRUST ADVISORS

Effective Use of Trust Advisors Can Avoid Trustee Problems

As the second part of this two-part article explains, the combination of a corporate trustee with a competent group of advisors may produce the best results for clients' families, and therefore should be considered carefully.

Author: SHELDON G. GILMAN, ATTORNEY

SHELDON G. GILMAN, of the Kentucky, Ohio, Indiana, Florida, District of Columbia, and Tennessee Bars, is a member of the law firm of Lynch, Cox, Gilman & Mahan, PSC, in Louisville, Kentucky. He is also a Fellow of the American College of Trust and Estate Counsel, and is a frequent author and lecturer on estate and employee benefit planning, and professional responsibility matters.

In many estate planning situations, it is appropriate to create a trust for the benefit of the members of the client's family. Regardless of the number of years the trust will remain in existence, one of the more crucial issues facing clients is who will serve as trustee. The considerations that are used in selecting the person who will administer the client's estate are totally different from those involved in choosing a trustee because the objectives and responsibilities of these positions are so different. If a trust is created under a will, some states require that the fiduciary be a resident of the state or be related to the decedent by consanguinity or marriage. ¹ If the client executes an inter vivos trust, there are few legal restrictions on the choice of trustee, other than the requirement that the trustee have capacity to contract.

The more important criteria in trustee selection are ability, durability, integrity, experience, judgment, understanding, and honesty. In this regard, a trustee could be a corporate institution; a family member; a professional person-that is, a lawyer or accountant who has special training; or a nonprofessionally trained individual, businessperson, or a combination thereof.

The first part of this two-part article ² (which appeared in the February 2008 issue of Estate Planning) analyzed the advantages and disadvantages of corporate and individual trustees, trustee conflicts of interest, the power to change trustees, the use of co-trustees and special trustees, and the use of trust advisors. This second part of the article examines significant case law, the selection of trust advisors, the role of the committee of advisors, and provides drafting suggestions.

Review of significant case authority

Gathright's Trustee v. Gaut.³ In one of the first cases of record where a court considered the use of trust advisors, in 1939 the Kentucky Court of Appeals reviewed a situation where the designated trust advisors were no longer able to continue to serve as advisors. Emma Gathright's will provided that "The executor shall have no power to sell any property possessed by me . . . or make any new investments without the assent of Jesse N. Gathright, ... or Joseph Perry Gaut ...; should either of said persons be incapacitated from acting or refuse to act in the matter, no purchase or sale or reinvestment shall be made by said Executor without securing the consent of a Judge of the Circuit Court . . . ."

Both advisors died, and the beneficiaries brought an action alleging that the delay and expense of obtaining a decree of the circuit court was very burdensome. Furthermore, several of the judges of the circuit court refused to act in the capacity of advisor. The beneficiaries wanted to remedy the situation, and the circuit court declared that the provisions of Gathright's will were ambiguous and that it was not the duty or obligation of the judges of the circuit court to act as an advisor to the trustee. The court, in an attempt to carry out Emma Gathright's intention, appointed Morton Boyd as a trust advisor. The Kentucky Court of Appeals made the following important comments:

• "The advisors are not . . . trustees under the will, but their status and their duties partake of the nature of the status and duties of a trustee, or it might be proper to consider them as co-trustees...but with limited authority. The settlor may appoint an advisor to his trustee whose consent to certain acts may be prerequisite to the valid execution of parts of the trust.... We think they may be said to be advisory trustees with strictly limited capacities and duties, that is, an assistant to the trustee limited in his capacity by the terms of the trust, having no right or authority further than the capacity of advising as provided in the instrument."
• "The purpose of the [provisions of decedent's] will was that the trustee should continue to have the power of sale and reinvestment but was only to exercise this power with the consent of an advisory committee, or advisory trustees, and that the limited and restricted trustee powers granted to the named advisors was [sic] not intended to be a power personal only to the advisors named. We reach this conclusion because this clause provides for a substitution on the advisory committee in the event of incapacity of an advisor and the substitution is not made a personal matter but is extended to a class and a continually changing class. Any judge of the Jefferson Circuit Court could be substituted. It appears to have been the purpose of testator only that the advisory committee should be continued under the safeguard of some person occupying this high official position." (Emphasis added.)
• "As the duties of these advisors partake of the nature of trustee duties, and as we have indicated that the advisors partake of the nature of trustees in a very strict and limited sense, and as it was not the intention of the testator to make the exercise of these advisory duties purely personal, equity will not permit the trustee or advisory duties specified in the will to fail for want of advisory trustee to exercise them. It is well settled that equity will never permit a trust to fail for want of a trustee, but will appoint a trustee or execute the trust by its officers." (Emphasis added.)

First Camden Nat'l Bank & Trust Co. v. Broadbent.⁴ This was an action brought by the trustee for the construction of decedent's will, which, in pertinent part, contained the following provision:

`4th The account of stocks and bonds I devise to remain intact [the life beneficiaries] to receive income the losses and gains to be shared by them. I appoint Sam Jemison of Phila as adviser-he will consult with Geo. Pflug Felder of L.A. to make any changes in the account necessary for the security of the account-* * *.'

The court opined that while the word "intact" may appear to cause an ambiguity as to the powers of the trustee, the word "intact" does not prohibit the trustee from disposing of the trust assets in part or as a whole, but just requires that the account be managed as one trust. The court then stated that the "testatrix, by specifically appointing advisors to be consulted in regard to making changes in the security of the account, shows that her intention was that various holdings in the account be sold as the protection of the fund requires." Therefore, "the trustee has the power to dispose of any portion of this account as the protection of the account demands." The court then proceeded to consider the trustee's contention that the appointment of Sam Jemison as an advisor should not be binding on the trustee.

The court stated: "The apparent purpose of the testatrix in making these appointments was to provide future protection for the account from loss in value due to market changes. The appointment of the [trustee], an experienced and financially responsible fiduciary, as trustee by the Superior Court of New Jersey on September 15, 1958, has alleviated any need for independent advice for the protection of this account. It has been recognized that the enforcement of a direction by the testatrix to the trustee to employ a designated person in the administration of the trust will only serve to impede the trustee in his duties as trustee. Chief Justice Vanderbilt, speaking for the court, held that it would be against public policy to enforce the testator's directions that a certain law firm be retained as attorney....The rationale used to reach that conclusion is that it would be unjust to the trustee to require him to employ, as an attorney, a person in whom he lacks confidence, because the result might well be disastrous to the administration of the trust. The relationship between the trustee and an investment advisor also requires confidence and trust. In view of the alleviation of any need for any independent advice by the appointment of the plaintiff as trustee, and the confidential relationship required between the trustee and any investment advisor, the court is of the opinion that it would likewise be against public policy to require the trustee to secure the advice of the testatrix's appointees in regard to the investment account."

This is the only case the author found where a court considered the propriety of an advisor's appointment, with a power of supervision over a trustee's action, and concluded that such appointment was against public policy. The more consistent authority is best illustrated by the Gathright case discussed above and the Rubin case discussed below.

Matterof Will of Rubin.⁵ In a review of the powers of advisors, the court commented that while appointments of executors may have a long history, the imposing of restrictions on fiduciaries which require them to follow the directions of advisors is a more recent phenomenon which is not dealt with extensively by the cases. These situations raise questions for the courts, such as the following:

• What duty does the fiduciary have to follow the direction of the advisor?
• What is the status of the advisor?
• What judicial control is the advisor subject to?
• What responsibility does the executor or trustee have in following the directions given?
• Is this an impermissible delegation of authority by the fiduciary?

The Rubin court found that the answer to the initial question is that a fiduciary is required to follow the directions of the advisor for the same reasons that the testator may impose conditions upon gifts made by him that are neither unlawful nor against public policy. One commentator ⁶-in referring to advisors-uses the term "Special Trustees and Directors" and urges the same reasoning in validating provisions employing advisors. "The simple explanation for the validity of the use of Special Trustees and Directors is another maxim: A grantor or testator may give his gift subject to any terms and conditions he chooses, unless the terms are contrary to public policy or some such restriction applies. Therefore, certain powers can be withheld from the Principal Trustee and delegated to others. Only one court has stated that the appointment of a Special Trustee in a case where the Special Trustee is competent is against public policy. The authors believe that this case is incorrect." ⁷

The Rubin court was in agreement with those commentators who state that there is nothing invalid or contrary to public policy concerning such restrictions. The court stated that rather than being against public policy, such provisions designating advisors to fiduciaries can serve a useful purpose in implementing estate plans selected by testators. The commentators point out that while there is no limit to the situations where an advisor may be used, several typical areas are particularly suited to such use. One situation would be where the testator divides the fiduciary functions between a primary fiduciary and an advisor on investments. Another situation would be using a sprinkling trust where the advisor is to direct the fiduciary or trustee with regard to distributions of income and principal to the beneficiaries, and a third situation might involve the use of a surviving business partner selected to direct the fiduciary as to the management of the business asset since the surviving partner in many cases would be in the best position to make decisions regarding the business.

The Rubin court also noted that insofar as the status of an advisor is concerned, the courts have generally considered the advisor a fiduciary, somewhat in the nature of a co-trustee. Since the relationship between the trustee and the advisor is that of a co- trustee, with the advisor having the controlling power, the fiduciary is justified in complying with the directives and will not generally be held liable for any losses unless the instructions given the trustee are improper or in violation of fiduciary duties owing to the beneficiaries.

Selection of trust advisors

Trust advisors may be an individual, entity, or group of individuals nominated by the grantor and having his or her confidence. Generally, more than one person will serve as a trust advisor and these persons will usually be acquainted with the grantor's family and circumstances. These persons may act as the grantor's alter ego upon the grantor's incapacity or death. The grantor's trust should provide a procedure for designating successor trust advisors. As explained in Part 1 of this article, the IRS has issued favorable private letter rulings when beneficiaries have a right of direction and removal as long as any successor trustee is not related or subordinate to the beneficiary within the meaning of IRC Section 672(c).

Determine reasons for advisor appointment.When determining whom to appoint as members of an advisory committee, one should consider the risks against which the client/grantor is seeking protection because this will most likely be determinative in the advisor selection process. The following are potential problems that a client might want to consider:

• The trustee fails to discharge its duties to the beneficiaries properly or fails to administer the trust in an efficient manner;
• Trust investment performance is unsatisfactory;
• The grantor's wishes with regard to discretionary powers are not observed;
• The grantor wants to avoid misunderstandings and disputes between the trustee and beneficiaries;
• Change in the corporate ownership of the corporate trustee or the corporate trustee suffers unexpected legal problems or financial difficulties;
• Containing the costs of trust administration becomes difficult and/or the fees become unreasonable;
• The trust arrangement or investment strategy becomes inefficient for tax purposes-e.g., generation-skipping taxes or income taxes; and
• The selected trust jurisdiction becomes unsuitable.

Criteria for appointment of trust advisors.Because trust advisors are sometimes viewed as the grantor's alter ego, it is appropriate to take into account a number of factors in selecting trust advisors, including the following.

• The person's suitability and competence;
• Whether the person's residence is convenient for interacting with the trustee and the beneficiaries, and whether the location of that residence creates any risks in terms of taxation, disclosure of confidential information, and the like;
• Whether the person will accept enforceable duties and accountability for his acts and omissions;
• Whether the person resides where he or she will be able to detect signs of unsettling events occurring where the trust is being administered; and
• The terms and cost of advisor engagement.

Defining the role of the committee

While there is no "standard" set of powers given to advisors, the following is a suggested list of powers that are commonly seen in trusts that use a trust advisor:

• Remove, add, and replace trustees;
• Veto or direct trust distributions;
• Add or delete beneficiaries;
• Change the situs of the trust;
• Veto or direct investment decisions;
• Consent to the exercise of a power of appointment;
• Amend the trust as to administrative provisions;
• Approve trustee accountings; and
• Terminate the trust.

Risks of too many powers.Although there may be a temptation to include extensive powers in order to be able to deal with future problems and unforeseeable circumstances, it may become a question of whether what the client is really looking for is a "substituted grantor"-for example, giving the advisors the collective power to change dispositive provisions. Thus, when analyzing the powers to be given to advisors, serious consideration should be given to the realistic purposes of the trust and a reasonable selection of classes of beneficiaries.

If the advisor is a beneficiary and has the power to change trustees, as well as other substantive powers over the trust, then it is possible that the IRS may conclude that the beneficiary advisor has a general power of appointment requiring inclusion of all the trust assets in the advisor's taxable estate. Hence, if the client wants the advisors to have significant powers over trust administration and trust distributions, it may be best to add nonbeneficiary members to the committee of advisors or place other limits on family member advisors.

Administration issues for the advisory committee

The trust advisor should be given specific rights and powers. The following issues should be considered in drafting advisory committee provisions.

Power to employ advisors.

• Engage legal and tax counsel.
• Engage accountants to review accounting reports, etc.
• Engage investor advisors.

Decision making.If there is to be more than one trust advisor, the trust instrument should indicate how they are to operate as a committee. The following issues should be considered:

• Will the advisory committee have the power to direct the trustee to take a specific action or will the committee's communications to the trustee be merely advisory suggestions for the trustee to take into consideration?
• Will decisions be made by a majority vote or will a super-majority vote of the advisors be required?
• Will advisory committee members have an equal vote or will one or more members have a higher percentage vote?
• Will the advisory committee members be required to attend meetings or may they conduct business by telephone?
• Will the trustee be able to proceed with a trustee-recommended action if the advisor fails to respond within a reasonably certain time period?
• How will the incapacity or death of a trust advisor be dealt with, making it clear that the advisor's powers are fiduciary and not personal?
• How may the trustee act during any period where there is no advisor? For example, it may be best to give the trustee the power to appoint advisors in the event the committee fails to exist, becomes deadlocked, or fails to act.

Succession issues.A well-written provision concerning advisors should contain specific provisions for advisor succession. The client should consider the following issues.

• Will the client designate a list or group of persons to serve as successors?
• Should the surviving spouse have the right to appoint his or her new spouse?
• May children appoint their own committee members?
• Should the trustee be consulted in the selection process?

Conclusion

Despite the fact that there is no perfect solution to the question of trustee appointment and supervision, it is the author's opinion that the best course of action for our clients and their families is to appoint a single trustee-a trustee who is trained for the job-preferably a corporate institution, who will be responsible for all trust administration issues, and then appoint an advisor or a committee of advisors who will provide the corporate fiduciary with the necessary insight into the clients' family members and will provide meaningful oversight of the trustee's administrative services.

The combination of a corporate trustee with a competent group of advisors should produce the best results for clients' families. The approach combines the strength of the corporate trust department and the personal touch that we humans demand and expect. While the use of an advisory committee might not solve all the problems, the recommended action has substantial merit and should be thoroughly evaluated with clients.

Drafting suggestions for advisory committee

The following sample language provisions are offered for readers' careful review and consideration, and, like most things in life, do not come with any particular warranty or representations.

Members of Committee (alternate provisions).

Alternate #1.John Sample and George Form will serve as the initial members of the Advisory Committee ("Committee"). If any of the initial members of the Committee are unable to serve, then Sam Successor will serve as the first successor Committee member.

Alternate #2.My wife Mary Jane and my son Junior will serve as the Advisory Committee ("Committee") to the Trustee. If my Spouse cannot serve as a member of the Committee, or upon her death, then I appoint my children ____________ as members of the Committee to serve as my Spouse's successor.

Alternate #3.I [the grantor] will appoint the members of the Advisory Committee ("Committee") to the Trustee by a separate written instrument. Further, I [the grantor] retain the right to remove any member of the Committee at any time; provided, however, I [the grantor] will not serve as a member of the Committee nor may I ever be appointed to serve as a member of the Committee.

Appointment of Successor Members.The Committee is a self-perpetuating body for the duration of any trust established hereunder. When a member dies, resigns, becomes incapacitated or ceases to act for a period of six months, then during my life I will appoint a successor to the Committee. If my Spouse survives me, and, if there is a vacancy on the Committee, my Spouse will appoint the successor member to the Committee; however, in the event my Spouse remarries then my Spouse may not appoint such new spouse as a member of the Committee.

Appointment of Successor Members After Death of Spouse-Alternatives.

Alternate #1.After my Spouse's death my children will serve as members of the Advisory Committee of the trust that is created for their use and benefit and they will have the power to appoint two additional members to their Committee.

Alternate #2.After my Spouse's death the remaining members, by majority vote, will appoint a successor, and the Committee will continue in this manner to perpetuate itself. The Committee will inform the Trustee of any new member.

Alternate #3.After my Spouse's death a separate Committee will serve for each separate trust created under this instrument, and the members of the initial Committee will continue to serve as Committee members. In addition, each of my children who are beneficiaries of the Trust will serve as a member of the Committee of his or her individual Trust. If a vacancy on the Committee occurs, then the remaining members of the Committee will have the power to appoint a successor member. If a child or grandchild is unable to serve as a member of the Committee, then the remaining members will appoint a successor member, and the Committee will continue in this manner to perpetuate itself.

Required Consultation With Trustee and Independent Committee Member.Prior to appointing a successor to the Committee, the then serving members of the Committee will consult with the Trustee with regard to the selection of a successor member to the Committee so as to gain the benefit and insight of the Trustee with regard to this matter; however, the Trustee's recommendation will be solely advisory. Further, the Committee will have at least one "independent" nonfamily member serving on such Committee.

Appointment of Successor by Trustee.If the situation occurs where there are no acting members of the Committee, then the Trustee will appoint at least two persons to serve on the Committee. The Trustee in making such appointment(s), will give primary consideration to members of my family and the beneficiaries' family and to having at least one "independent" nonfamily member serving on the Committee.

Committee Member's Voting Percentages.

Alternate #1.The Committee members will possess equal voting power, and the decisions of the Committee will be based upon a simple majority vote.

Alternate #2.After my death, my Spouse, Mary, and Abraham Lincoln, George Washington, and Thomas Jefferson will serve as the Committee. The Committee members will possess a voting power as described below, and the Committee's decisions will be based upon a simple majority vote after taking into consideration the voting rights of the Committee members. During my Spouse's life the Committee will have the voting rights with respect to their actions as follows: (a) my Spouse-40%; (b) Abraham Lincoln-20%; (c) George Washington-20%; and (d) Thomas Jefferson-20%. After my Spouse's death the remaining Committee members will possess equal voting power.

Alternate #3.The voting rights of the Committee will be as follows. Until my child Sam, Jr., attains age 25, all members will have an equal vote. When my child attains age 25, he will have a 40 percent vote, and the other members will have a 60 percent vote, with an equal vote for each such other member. When my child attains age 30, he will have a 50 percent vote, and the other members will have a 50 percent vote, with an equal vote for each such other member, and when my child attains age 40, he will have a 60 percent vote, and the other members will have a 40 percent vote, with an equal vote for each such other member.

Powers of the Committee.The Committee, acting through a majority of its members, has the powers that have been conferred upon it at various points throughout this instrument and has the following specific discretionary powers and authority:

(a) To consult with the Trustee with respect to general investment policy.

(b) To consult with the Trustee regarding discretionary encroachments upon principal.

(c) To direct the Trustee with regard to the specific selection of assets for purchase, sale, retention, and transfer if the Committee deems it necessary or appropriate to do so. The Advisory Committee may employ and designate other persons to recommend purchases and sales, in which event the Committee will notify the Trustee in writing of such appointment. Until notified in writing that such appointment has been revoked, the Trustee will have no power over such investments of the Trust other than that of a Custodian. In this event, the Trustee and Committee may consider a reduction in the amount of the Trustee's fees.

(d) To direct the Trustee with regard to the selection, retention and evaluation of policies of life insurance, and absent the specific direction of the Advisory Committee, the Trustee will have no authority or obligation to purchase, exchange or surrender any life insurance policy which is held as an asset of this Trust. The Trustee has no responsibility to undertake any review or to provide advice regarding any life insurance policy nor will the Trustee be responsible for the investment performance, or lack thereof, by any issuer of any life insurance policy held as an asset of this Trust.

(e) To remove the Trustee at any time and appoint a successor Trustee. In case the Committee terminates or ceases to exist, then a majority of the beneficiaries may remove the Trustee and appoint a successor Trustee. A successor Trustee must not be related to or subservient to the Committee within the meaning of Internal Revenue Code Section 672(c).

(f) To appoint an Investment Advisor to advise and direct the Trustee regarding the investment of Trust assets. The Committee may remove the Investment Advisor at any time and appoint a successor. In the event that no successor is appointed, or the Investment Advisor fails to serve as such, then the Trustee will again become responsible for the investment of Trust assets. The Committee will determine the amount of the Investment Advisor's fee and inform the Trustee of the fee determination, and the fee will be payable from the Trust estate as an administration expense. The Trustee will be relieved from liability resulting from actions taken pursuant to the directions of the Investment Advisor. The appointment of an Investment Advisor will not in any way limit or otherwise affect the discretion or responsibility given to the Trustee with regard to the use and enjoyment of the Trust estate. During the period an Investment Advisor is acting hereunder, the Trustee will act as a Custodial Trustee concerning the Trust property and will have no investment responsibility for the Trust assets. In this event, the Trustee and Committee may consider a reduction in the amount of the Trustee's fees.

(g) To order the transfer of the Trust property (or any portion thereof) or the situs of Trust administration, or both, at any time and from time to time from one jurisdiction to another jurisdiction (including another nation), and, regardless of any other designation of applicable law, to elect, by a written instrument, that the law of such other jurisdiction will thereafter govern.

Closely Held Business Interests.Notwithstanding any provision in this Trust Agreement to the contrary, the Trustee will not sell nor dispose of any equity ownership interests in (name of entity) nor any affiliated or associated commercial enterprise without first obtaining the prior written consent of the Committee. Further, prior to the voting of any shares of such commerical entity, the Trustee will consult with and be bound by the decision of the Committee in regard thereto. The Trustee will be relieved from all liability resulting from actions taken pursuant to the directions of the Committee.

Coordination With Trustee.It is my desire that the Trustee and the Advisory Committee work together to carry out the terms and provisions of the Trust(s) created under this instrument. I have given the Trustee full and complete powers for the administration of the Trust(s); however, such empowerment provisions are subject to the review and approval of the Advisory Committee as the Committee performs its oversight functions. Therefore, the Trustee will develop a plan for the administration of the Trust(s) created by this instrument, and will submit such plan(s) to the Advisory Committee for its review, modification and ultimate approval.

Trustee Conflict of Interest.The Trustee will report to the Committee any conflict of interest that the Trustee may have in the administration of this Trust, and will obtain the Committee's approval for the Trustee's proposed course of action.

Tax Changes.In order to avoid unintended tax results, achieve tax advantages and respond to changes in the Code, Regulations, and Revenue Rulings that otherwise may reduce or eliminate the tax benefits available to the Trust and its beneficiaries, the Committee has the power to expand, limit, restrict, revoke, or otherwise modify the powers of a fiduciary hereunder and to modify the provisions that relate to the identity, qualifications, succession, removal and appointment of the Trustee (but not to allow me to act as Trustee).

Payment of Committee's Expenses and Compensation.Advisory Committee members will be paid reasonable compensation for their services (which may be their normal hourly rates), and will be reimbursed for their costs and expenses. Such amounts will be considered a cost of the administration of the Trust for which such advisor serves and will be charged to Trust principal.

Liability of the Committee.No member of the Committee will at any time be held liable for any action taken or not taken (including any action taken or not taken in exercising a business judgment and/or in making payments to or for the benefit of any beneficiary), or for any loss or depreciation of value of any property in any Trust created hereby, whether due to an error of judgment or otherwise, where such member of the Committee has not acted in bad faith. In the case of the delegation of any discretionary power hereunder, the member of the Committee so delegating will not be liable for the acts, omissions or defaults of the agents, servants or employees to whom the delegation is made. The member of the Committee will be entitled to recover from the Trust estate (but only to the extent of the assets therein at the time a request for such recovery is made) for any and all losses, damages, expenses (including attorney's fees), claims, lawsuits or judgments incurred or suffered by such member of the Committee, whether individually or in a fiduciary capacity by virtue of, or in any way arising from, any action taken or not taken by, or allegedly taken or not taken by such member of the Committee; except that no member of the Committee will be entitled to recover any such amount if it is established by a final judgment of a court of competent jurisdiction that such person was acting in bad faith at such time.

Committee Actions.Members of the Committee will at all times act as, and have the obligations of, fiduciaries. If the Committee fails to respond to requests for advice from the Trustee or if the Committee is divided and is unable to reach a decision, then the Trustee will act to protect the interests of the beneficiaries as the Trustee deems best in the exercise of its independent fiduciary discretion. Further, no party dealing with the Trustee has any duty to see if the Trustee is acting within the scope of the Trustee's authority. The Trustee will incur no liability when it acts at the direction of the Committee or the Committee's designee. Further, the Trustee will be held harmless from any actions taken as a direction from the Committee or the Committee's designee.

PRACTICE NOTES

If a client wants the advisors to have significant powers over trust administration and distributions, it may be best to add nonbeneficiary members to the committee of advisors or place limits on family member advisors.
¹

See, e.g., Fla. Stat. 733.304, and In re Estate of Greenberg, 390 So.2d 20 (Fla., 1980). See also KRS 395.005 (Kentucky).
²

See Gilman, "How and When to Use Trust Advisors Most Effectively," 35 ETPL 30 (Feb. 2008).
³

124 SW2d 782 (1939).
⁴

168 A2d 677 (1961).
⁵

143 Misc 2d 303, 540 NYS2d 944, 1989 WL 38451 (N.Y. Surr., 1989).
⁶

See Cohen and Frimmer, "The New Breed of Quasi-Fiduciaries-Splitting Duties and Personal Liability for Wrongdoing." 6 U. Miami Inst. on Est. Plan. Ch. 14 (1972).
⁷

Id.

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