Special Fiduciary, Trust Litigation, Breach of Trust
In breach of trust litigation, the plaintiff can request a variety of remedies against the trustee. The remedies include, among other things, damages, removal and/or suspension. In more contentious situations, a probate court does have the authority to appoint a “special fiduciary” to administer the trust, in whole or in part, while the suit is pending. The source of this authority is contained in Section 456.10-1001(5), RSMo (the Court may “appoint a special fiduciary to take possession of the trust property and administer the trust”). Further, in conjunction with the Court’s near unfettered authority to make orders with respect to a trust pending litigation, particularly the power to order that a trust be supervised, a court can, in effect, “take over” the administration of the trust from a private trustee.
Depending on the posture of the litigation, this can be a good or bad thing. For strategic and substantive reasons, a beneficiary who is bringing a suit against a trustee is often inclined to have a neutral third-party and/or court supervision in place while a suit is pending. From experience, a court may exercise its discretion to appoint a special fiduciary if it feels that there is potential or actual harm to the trust assets and/or beneficiaries.
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