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Amy Lonergan and Joshua Miller, managing director of Atlantic Trust, co-authored an article, " What is Reasonable? None of these factors alone is decisive. If a will fails to address the issue of compensation, the Massachusetts Uniform Probate Code (“MUPC”) contains a default provision, which states that “[a] personal representative is entitled to reasonable compensation for services.”  M.G.L. ( Log Out /  For more information, please visit our COVID-19 Resource Center | Racial Justice and Equity Task Force. The Court held that “there is no rule of law and no principal of right by which such commissions are to be charged or allowed without regard to the rendition of actual services therefore.” Grimes, 22 Mass. The attorney is entitled to receive the fair value of his or her services and the amount charged should be reasonable based on the services provided and the factors set forth in McMahon. Also, in Corcoran v. Thomas, 6 Mass. For example, an MA estate worth $700K that required 850 hours of effort might generate $19K in … (2020), Venable Post-Election Series: Election Night Discussion (Nov. 4, 2020). If you need more help deciding if you should accept compensation for serving as executor, read this guide.. McMahon v. Krapf, 323 Mass. Brad Gallant is quoted in an article, "My Sister-in-Law Died by Assisted Suicide: Connecticut Braces for Aid-in-Dying Bill," published by the Connecticut Law Tribune. If an attorney would like to charge a fee schedule for his or her services as a fiduciary, that should be discussed when the controlling document is drafted and made a part of such instrument. In Grimes v. Perkins School for the Blind, 22 Mass. Id. Post was not sent - check your email addresses! 92 (2013) Explains the concept of decanting trusts. historically, this amount is between 2% and 5% plus all out of pocket expenses. In 1948, the Supreme Judicial Court in McMahon v. Krapf, 323 Mass. If a testator or settlor appoints a corporate fiduciary with a fee schedule, there is an inference that the fee schedule was known and agreed to. Under state law, fees are usually calculated either as a percentage of the total value of trust assets or a percentage of the transactions you make (the money that goes in and out of the trust). Among all the factors from McMahon, time expended has been determinative in calculating reasonable fees for an attorney acting as a fiduciary. Executor’s or administrator’s fee: Pay yourself your executor’s fee, which must be reasonable. Finally, if multiple fiduciaries are serving, each is entitled to compensation in proportion to his or her services. There is no set rate but the amount will vary. Corporate trustees, banks and trust offices very often use fee schedules to charge for their services as fiduciary. HBR Hotlist (Nov. 2, 2020): How to Thrive When Everything Feels Terrible; Our Work from Anywhere Future; What It Takes to Lead Through Exponential Change, and More! (Of course, a trustee likely will not be entitled to reimbursement of such fees from the trust if the court finds that he or she is liable for wrongdoing.) As a general rule, if the Trustee is also investing the trust assets, the percentage will be higher than if the Trustee is simply managing and distributing the assets. Thus arises a classic confrontation over “reasonable David Fowler Johnson (Winstead PC): Administering Trusts in Recessions: Trust Loans to Beneficiaries (October 30, 2020), Forbes: The Serious Disconnect Between A Hot Residential Real Estate Market And The Coming Tsunami Of Foreclosures, Forbes: Rocker Gene Simmons Kisses Off California Taxes, Should You Too? A trust is a legally binding arrangement whereby a settlor transfers title to another person, the trustee, for the benefit of a third, the beneficiary. This would be a typical benchmark for individual Trustees to base their Trustee fees on and most Courts uphold a minimum annual Trustee fee of 1% to be reasonable by default. Executor and Trustee Fees You may appoint an executor in your Will to wind up your affairs and distribute your estate on death. These standards are similar to those used to establish the reasonableness of legal fees. The executor fees can also be subject to approval by the probate court. Trust instruments, however, rarely specify the level of trustee fees, other than to note that trustees are entitled to “reasonable compensation.” 183A, §§ 1 et seq. Consideration is also given to the net benefit that may result from the fiduciary’s services. Ct. at 443. After all, an executor’s work is often very similar to that of a trustee. In sum, trustees should take a fee annually, with full disclosure (and, if possible, written consent from the beneficiaries) and in accordance with the rules of fiduciary accounting. A percentage schedule may be used as a guide, but it is “not to be mechanically applied without consideration of the care, thought and intelligence” that are given to the service of the fiduciary. HOA LAWS AND REGULATIONS. Brunelle v. … The Court’s list included size of the estate, marketable nature of the assets, factual and legal questions involved, time expended, skill and ability employed, amount usually paid to others for similar work and results accomplished. : 2021 Inflation Adjustments and Tax Tables Issued (October 26, 2020), Sally P. Schreiber, J.D. Day Pitney remains committed to providing quality legal counsel, while protecting our clients and employees, and transforming our communities into more just, equal and equitable spaces. Some grantors choose to limit the fees to a specific dollar amount, while others opt for allowing the payment of reasonable fees based on services rendered and applicable state law. §7768 Reasonable compensation; added factors a court may consider Rhode Island RI Gen.L. In addition to making payments to the beneficiaries, as trustee, you’re also responsible for paying the expenses you incur in administering the trust. The Court in Grimes also noted that no special skills were required, the case was not complex, it was a small estate and Mr. Grimes did not produce an appreciable benefit to the estate. The primary expenses include trustee’s fees, investment advice, accounting fees, and taxes. Does a Massachusetts executor charge a % of the estate or an hourly rate? Determining Fiduciary Fees in Massachusetts," forWealth Strategies Journal. However, such percentage schedules are not appropriate for an individual fiduciary. :The statute governs the formation, management, and operation of … AICPA Tax Insider (October 29, 2020): Offer-in-compromise Scams Expected to Increase; 2021 Inflation Adjustments and Tax Tables Issued; Inflation-adjusted Income Ranges for 2021 IRA and 401(k) Plans; and More! Your executor (or administrator if you die without a will, or your executors are unable or unwilling to act)is entitled to be reimbursed for reasonable expenses which he or she incurs in dealing with your estate. App. In the Grimes case, an expert was presented who relied on fee schedules to attempt to prove the reasonableness of the fees. Compensation of trustee (a) If the terms of a trust do not specify the trustee’s compensation, a trustee shall be entitled to compensation that is reasonable under the circumstances. To achieve this, the trustee must use reasonable care, caution, and skill, and they must administer the assets solely in the interests of the beneficiaries. at 123. In trusts and estates with charitable beneficiaries, the Massachusetts Attorney General has objected to individual fiduciaries who charged fees solely based on a schedule and did not provide any further substantiation to the reasonableness of their fees. Amy R. Lonergan is counsel in the Individual Clients department of the Boston office of Day Pitney LLP and Joshua S. Miller is a managing director and senior wealth strategist in the Boston office of Atlantic Trust Private Wealth Management. Federal laws - In addition to state law regulations, the federal government has laws that govern the operation of homeowners' associations, condominiums, and other residential properties in the state of Massachusetts.. Massachusetts Condominium Statute, Mass. Professional trustees rarely charge less than a 1% of the total worth of the estate as a fee. Compensation of trustee (a) If the terms of a trust do not specify the trustee's compensation, a trustee shall be entitled to compensation that is reasonable under the circumstances. In Corcoran, the executor charged the estate for fees ordinarily charged by a real estate broker for the sale of the real estate. Sally P. Schreiber, J.D. An exception to this might be where the Trust owns real property that stays … Section 708. The Court prevented the executor from taking the broker’s fee because, in applying some of the factors enumerated above, such as the time expended and skill involved, the services performed by the executor in selling the property did not warrant the fee. 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In Massachusetts, trustee fees are governed by the terms of the trust document and by accepted standards of reasonableness within the Commonwealth. If you’d like a bit more (free) help understanding the estate settlement process, you can answer a few simple questions and get a free custom executor plan here on Executor.org.. And, here are the executor fees by state, so you know how much compensation is reasonable. Timothy Fitzgerald, Kevin Hassett, Cody Kallan, and Casey B. Mulligan: An Analysis of Vice President Biden’s Economic Agenda: The Long Run Impacts of its Regulation, Taxes, and Spending (October 21, 2020), Karen Czapanskiy: Tax Policy, Structured Settlements and Factoring: Making Exploitation Easy and Profitable (October 23, 2020). However, there are numerous pitfalls for an attorney when setting and collecting his or her fees for serving as a fiduciary. App. 118 (1948), enumerated the factors to be used in determining reasonableness of trustee fees. The Court’s list included size of the estate, marketable nature of the assets, factual and legal questions involved, time expended, skill and ability employed, … https://elder-law.com/special-needs-trustee-fees-set-corporate-fee-schedule Therefore, if an attorney is acting in multiple roles, prior to performing a certain task, he or she should determine whether it should be performed in his or her role as attorney or fiduciary or if it should be delegated to someone at a more appropriate billing rate. : Inflation-adjusted income ranges for 2021 IRA and 401(k) plans (October 26, 2020). Pick a reasonable hourly rate. These cases do not involve the situation where an additional fee is warranted because the actions by the executor or trustee provided a windfall. c. 190B, § 3-719. See G. L. c. 206, § 16 (trustee shall be allowed "reasonable expenses, costs and counsel fees incurred in the execution of his trust, and shall have such compensation for … Ct. 439 (1986), Mr. Grimes was acting both as the executor and the attorney for the estate. The trustee fee statute provides for an award of trustee's fees that are "reasonable under the circumstances" when the trust does not specify compensation. What is Reasonable? In some cases, it would be more appropriate for the executor to hire someone to perform the work than to do it himself and charge his hourly rate. Few key cases in Massachusetts guide the fiduciary in setting reasonable fees. This standard fee also serves as a base rate for relatives or close friends of the trustor that serve as the trustee because laws assume he or she will be performing the same duties that a … What would a reasonable fee be for a Massachusetts executor or trustee? Change ), You are commenting using your Facebook account. Determine whether the grantor has made any mention of estate trustee fees. Typically, professional trustees, such as banks, trust companies, and some law firms, charge between 1.0% and 1.5% of trust assets per year, depending in part on the size of the trust. Attorney’s and accountant’s fees: For preparation of Form 706 and Form 1041, and for the probate accounting. Ct. 1990 (1978), an appellate court held that “[t]he only rule of law is that the fiduciary is to receive just and reasonable compensation for all services performed in his trust.” The average fee is roughly 1%-5% of the corpus of the trust, but it … Oregon ORS 130.635(1) Reasonable compensation; fees paid to third party performing trustee functions may reduce trustee fee Pennsylvania 20 Pa. C.S. Change ), You are commenting using your Twitter account. The trustee will be paid 1.75 percent on the first $500,000, 1.25 percent on the next $500,000, 1.0 percent on the next $1 million, 0.85 percent on the next $3 million, and 0.50 percent on values over $5 million. Trusts in Massachusetts are governed by the Massachusetts Uniform Trust Code, codified at G.L.c. Courts have determined trustees’ fees by comparing the subject trustee’s fees to those of multiple other trust companies in the area.10 Courts have authorized corporate trustees to receive commissions based on their published fee schedules so long as such schedules are reasonable. - Answered by a verified Estate Lawyer ... realize that if the fee is contested by a beneficiary you will have to justify your fees to the court. Trustee’s Skill and Expertise fees of $60 million on assets that they claimed grew in value to over $2 billion due to their efforts.6 The trustees also submitted the certifications of two expert witnesses opining that, in their experience, the lodestar method is never used to determine trustee fees. For example, the executor in McMahon paid unwarranted bills and incurred unnecessary expenditures that were detrimental to the estate. (2007). The will or trust, as the case may be, controls the fees a fiduciary may charge for providing fiduciary services. App. Section 708. There was a concern that the estate was getting billed twice for the same service and Mr. Grimes was charging his hourly rate for “humdrum work,” such as going to the post office. Sorry, your blog cannot share posts by email. The trustee log should be a chronological narrative specifically describing the activities, decisions, events and circumstances involved with the trustee’s discharge of his duties. Unlike in some states, where the executor fees are fixed amounts equal to a percentage of the probate estate, in Massachusetts the executor is entitled to “reasonable compensation” for services rendered. A violation of this is a breach of trust. Accordingly, to determine what is considered “reasonable,” the fiduciary must look to Massachusetts case law. James M. Lestikow, a partner in the Springfield, Illinois office of Hinshaw & Culbertson LLP, authored the article "Trustee’s Fees: What Is “Reasonable' Compensation?" The statute does not set forth a methodology for calculating "reasonable" trustee's fees or otherwise explain which circumstances should be considered. App. ( Log Out /  This article first appeared in the BBA’s Trust & Estates Section’s Winter 2009 Newsletter. The determination of how the factors are applied to the particular facts of the case at hand rests largely in the discretion of the probate court judge. 203E. However, in reviewing Mr. Grimes’ time records, the Court took issue not only with the amount of time Mr. Grimes spent on various tasks, but that he did not separate out his time between his role as executor and his role as attorney. These fees usually arise when a successor trustee takes over the administration of the trust upon the death or incapacitation of the person who originally enacted the trust. at 444. c. 203E, §708(a). Chuck Cavanaugh (Citi Personal Wealth Management): Federal Estate Tax Exemption Is Set to Expire – Are You Prepared? Copyright © 2020 Day Pitney LLP, all rights reserved. Trustees are entitled to “reasonable” compensation whether or not the trust explicitly provides for such. On the other hand, there are other responsibilities that require the skill and knowledge of an attorney or professional, such as the sale of property, interpretation of a legal document and preparation of an estate or fiduciary tax return, in which it is proper to charge his or her hourly rate. For example, if the fiduciary mows the lawn at the decedent’s house, he or she should not charge his or her standard rate. Few key cases in Massachusetts guide the fiduciary in setting reasonable fees. 118, 123 (1948). Determining Fiduciary Fees in Massachusetts ," for Wealth Strategies Journal . 66.] 2. Still others leave their successor trustee a specific bequest instead of a fee. Frequently, however, a trust agreement is silent on the issue of Trustee fees, or the trust agreement calls for the Trustee to be paid a “reasonable fee” for his/her services. Probate Stars: Can You Vote With A Power of Attorney? Executors for MA estates are entitled to reasonable compensation. § 18-6-1 Reasonable compensation (not UTC) South Carolina SC Code § 62-7-708 Reasonable compensation A trustee is entitled to “reasonable” compensation. The private right of action under Massachusetts Civil Rights Act (MCRA) § 11I explicitly provides for recovery of reasonable attorney fees for “[a]ny aggrieved … persons who prevail in an action” under the MCRA. The Court in Corcoran v. Thomas, 6 Mass. Ct. 199 (1978), held that “[t]he only rule of law is that the fiduciary is to receive just and reasonable compensation for all services performed in his trust.” The Corcoran Court then continued by stating that “[e]verything that a fiduciary does rightly and properly is to be paid for….” Id. The reader should first read our two articles on Wills and Trusts and the Irrevocable Living Trust before reading further. (It should be noted that all of the case law on this topic to date–including the cases referenced below–was decided before the enactment of the MUPC and the MUTC, but such case law is still considered the primary source of interpreting the “reasonableness” standard.). Change ), You are commenting using your Google account. trustee compensation, is a matter left largely to the judge's discretion. Id. ... then generally the executor's fee is statutory and is a reasonable fee or it can be based on a percentage of the estate if there is a provision in the testamentary instrument concerning fees. What is interesting to note about the Corcoran case is that the Court specifically did not take into account the general commissions paid to a real estate broker, despite the amount usually paid to others for similar work being one of the factors from McMahon. Disputes over trustee fees can be hotly contested and disrupt efficient administration of the trust. [Text of section applicable as provided by 2012, 140, Sec. This does not usually include attorney's fees … In order to substantiate a claim for reasonable trustee compensation a trustee should keep a detailed trustee log together with any underlying source documents. Many of the cases involving fiduciary fees, including the cases mentioned above, involve the situation where the results obtained by the fiduciary were unfavorable to the trust or estate. Similarly, the Massachusetts Uniform Trust Code (“MUTC”) states that “[i]f the terms of a trust do not specify the trustee’s compensation, a trustee shall be entitled to compensation that is reasonable under the circumstances.” M.G.L. What exactly is “reasonable compensation” though? 268 (1957). Re: Massachusetts executor's fee calculator Depends on the size of the estate and the amount of work entailed. costs of the litigation and reasonable attorneys' fees in an amount fixed by the court. Relying on Massachusetts case law to set fees is challenging because much of that case law is based on situations where the actions by the fiduciary were a detriment to the estate or trust. Trustees’ fees A trustee’s fee is the amount the trust pays to compensate the trustee for his or her time. […] The article discusses the considerations and pitfalls for an attorney when determining fees for serving as a fiduciary. If the instrument is silent as to the amount of fiduciary fees charged to the estate or trust, the attorney must look to the relevant statutes and Massachusetts case law to determine how much he or she should charge for serving as the fiduciary. 118 (1948), enumerated the factors to be used in determining reasonableness of trustee fees. Sullivan v. Sullivan, 335 Mass. Gen. Laws ch. In 1948, the Supreme Judicial Court in McMahon v. Krapf, 323 Mass. Amy Lonergan and Joshua Miller, managing director of Atlantic Trust, co-authored an article, "What is Reasonable? With the increased use of the Intervivos Trust as the standard “middle class” estate plan, a typical question that arises is how the Trustees are paid. On December 10, Dina Kapur Sanna served as a speaker on the panel, "Inbound Planning," at the American Law Institute, Continuing Legal Education Trust and Estate Planning 2020 conference. Massachusetts guide the fiduciary ’ s trust & Estates section ’ s fee is warranted because actions... Executor charge a % of the estate as a fiduciary may charge for fiduciary! In: You are commenting using your WordPress.com account for his or her for... Claim for reasonable trustee compensation, is a breach of trust of?. Massachusetts case law breach of trust document and by accepted standards of reasonableness within the Commonwealth costs of the as. And taxes be subject to approval by the probate Court cases in,... Reasonableness within the Commonwealth posts by email amount is between 2 % and 5 % plus Out! 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