When a trustee breaches his or her fiduciary duty, causing financial damage to the trust, trust beneficiaries are entitled to bring an action against the trustee for “surcharge.” This a fancy way of saying that the trustee should compensate the trust for the damage caused by his or her breach of fiduciary duty.
A surcharge will require the errant trustee to repay to the trust whatever funds were lost, misallocated, or taken due to the trustee’s breach of duty. In addition, a trustee may be surcharged for fees, expenses, or other expenditures made improperly by the trustee. On top of the “actual damages”, an errant trustee may also be required to pay interest based on the amount of appreciation that would have accrued if the trustee had not breached his/her fiduciary duty.
If you are a beneficiary of a trust and suspect that the trustee may not be properly handling the trust’s administration, it is important that you take prompt action to ensure that your interest in the trust is protected. While litigation and trustee surcharge may be required to right the wrongs caused by the errant trustee, early detection of possible problems can save a lot of headache and money in the long run.