[WSBARP] Trust Administration - Conflict

[Eric Nelsen]

In the first instance I would advise either resigning or giving up on buying the property. The difficulty at this point is probably trust between siblings – now that he has revealed his intention, if he markets and lists the property but does not get an offer at a price they think is good, will they suspect him of discouraging other buyers so that he has a chance to pick it up? He may face accusations of breach of fiduciary duty even if he genuinely met his duties.

If the Trustee really wants to buy, then I think it can work only with the unanimous approval of the other beneficiaries, which essentially renders moot any fiduciary breach claim. They could document with a TEDRA, the other beneficiaries should have ample opportunity to consult independent counsel, and the TEDRA needs a clear mechanism to establish fair market value. That could be done either with a certified appraisal, or possibly by testing the market and receiving offers, and the Trustee also submitting an offer himself, and then the Trustee transmits all the offers to the other beneficiaries and lets them decide whether or not his offer should prevail. (That would take more detailed safeguards and it has some procedural complications, but in general I think that scenario could be made to work.) But bottom line, unanimity is the only realistic route if he is going to remain Trustee and also buy the property. Otherwise, I think he probably should resign.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040



From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Ron Housh
Sent: Monday, November 24, 2014 12:55 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Trust Administration - Conflict

Trustee question.  Assume H & W die leaving family home in trust with direction to the successor trustee to sell the home.  Assume successor trustee is son who has 5 brothers and sisters.  Son is also an attorney.

Trustee son has interviewed 4 real estate agents – but has not yet signed a Listing Agreement.  Trustee son then tells the other 5 brothers and sisters he hopes to be given a chance to buy the home.  Trustee son has not made an offer and has not indicated any definite plans as to if and when he would make an offer.

In your view can trustee son continue to act as the trustee – at least with regard to the listing, marketing and sale of the house – in light of his stated desire to be given a chance to buy?

Could trustee son continue to act if all 5 brothers and sisters agree in writing that is OK?

What if only 4 of the brothers and sisters said OK, but one said “No – I am not comfortable with the trustee acting as the seller while telling us he may want to be a buyer”?

Thanks for your thoughts.

Ron



I AM TYPICALLY IN THE SEATTLE OFFICE ON TUESDAY AND THURSDAY AND IN THE MOUNT VERNON OFFICE ON MONDAY, WEDNESDAY AND FRIDAY

Ronald G. Housh, P.S.
Attorney at Law

Seattle Office:
1420 Fifth Avenue, Suite 3000
Seattle, WA 98101-2393
Phone:   206-381-1341
Fax:        206-464-0461
Email:    ron at housh.org<mailto:ron at housh.org>

Mount Vernon Office:
21411 Bluejay Place
Mount Vernon, WA 98274
Phone:  206-235-2459
Email:   ron at housh.org<mailto:ron at housh.org>






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