Legal Memorandum: Powers and Duties of a Trustee

Issue: Is a trustee under a duty to use liquid assets to repair a property that is one of the assets of the trust?

Area of Law: Estate Planning & Probate
Keywords: Powers and duties of fiduciary; Repair of property; Liquid asset
Jurisdiction: California, Hawaii, Nevada, Washington
Cited Cases: 158 Wash. App. 777; 67 Haw. 139; 179 P.3d 562; 124 Nev. 170
Cited Statutes: Nev. Rev. Stat. § 163.260, § 163.023, § 163.260(1), § 163.300, § 163.419(2), §§ 164.700—.775, § 164.735, § 164.710, § 164.745; Uniform Prudent Investor Act § 1
Date: 10/01/2011

Pursuant to section 162.260, a successor fiduciary succeeds to all the powers and duties which the instrument conferred on the original fiduciary with respect to the trust, unless the instrument expressly prohibits such succession.  Nev. Rev. Stat. § 163.260 (2010).  “A trustee has the powers provided in the trust instrument, expressed by law or granted by a court upon petition, as necessary or appropriate to accomplish a purpose of the trust, but a court may not grant a power expressly prohibited by the trust instrument.”  Id. § 163.023.

Certain trustee powers are automatically incorporated in a trust instrument by virtue of section 163.260, which provides:

Except as otherwise expressly provided . . . by a settler in a trust instrument, all the powers enumerated in NRS 163,265 to 163,410, inclusive, as they exist . . . at the time the first settler signs a trust instrument . . . must be incorporated in such . . . trust instrument as to the fiduciaries appointed under that . . . trust with the same effect as thought such language were set forth verbatim in the instrument.  Incorporation of the powers contained in NRS 162.265 to 163.410, inclusive, must be in addition to and not in limitation of the common-law or statutory powers of the fiduciary.


Id. § 163.260(1).  Among those enumerated powers, section 163.300 relates to the management of real property, and it provides, in relevant part:

In the management of real property a fiduciary may:

 . . .

11.  Erect, repair or renovate […]


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