July 05, 2018

A Dichotomy of Fiduciary Duties: Which Hat Does a Trustee Wear While Managing the Trust’s Business?

Timothy M. Ferges

Where a fiduciary serves as trustee and simultaneously manages a business entity owned by the trust, the fiduciary serves in dual fiduciary capacities. This “trustee-manager” owes fiduciary obligations to the trust beneficiaries both in his capacity as trustee and in his capacity as business manager (whether as an officer, director, or other manager of the business). This dual fiduciary status raises a question—what law governs the trustee-manager’s conduct? If claims are asserted by the beneficiaries of the trust regarding management of the business entity, what fiduciary standard should govern his actions? Is the trustee-manager’s conduct governed by the law of trust and estate administration, the law of business management, or some combination of the two?

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