Alexandria, VA Estate Planning Blog

Wednesday, July 2, 2014

Breach of Trust: Damages & Attorneys Fees

When a Trustee has committed a breach of Trust, that Trustee, as a remedy available to the court (See Additional Remedies) is liable to the beneficiaries for the greater of the following:

The amount need to restore the value of the trust property and trust distributions to what they should have been, or
The amount of any profit made by the Trustee from the breach. The Trustee is liable for the greater of the two above amounts, as opposed to the lesser. However, the beneficiary will need to establish that (i) a breach has occurred and (ii) that the breach has resulted in a loss in trust property, improper trust distributions or an economic benefit to the Trustee.

Trustees have many duties that they owe beneficiaries and frequently are in breach. If you are a Trustee and would like a consultation on your duties, or a beneficiary who believes that a breach has occurred, please contact us.

Virginia Code Section 64.2-793 Damages for breach of Trust
A. A trustee who commits a breach of trust is liable to the beneficiaries affected for the greater of:

1. The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or

2. The profit the trustee made by reason of the breach.

B. Except as otherwise provided in this subsection, if more than one trustee is liable to the beneficiaries for a breach of trust, a trustee is entitled to contribution from the other trustee or trustees. A trustee is not entitled to contribution if the trustee was substantially more at fault than another trustee or if the trustee committed the breach of trust in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. A trustee who received a benefit from the breach of trust is not entitled to contribution from another trustee to the extent of the benefit received.

Virginia Code Section 64.2-795 Attorney Fees & Costs
In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

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