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Finance is a term for matters regarding the management, creation, and study of money and investments. Specifically, it deals with the questions of how an individual, company or government acquires money – called capital in the context of a business – and how they spend or invest that money. Finance is then often divided into the following broad categories: personal finance, corporate finance, and public finance.
A trust is a legal relationship in which the owner of property gives it to another person or entity who must keep and use it solely for another's benefit. In English common law, the party who entrusts the property is known as the "settlor", the party to whom the property is entrusted is known as the "trustee", the party for whose benefit the property is entrusted is known as the "beneficiary", and the entrusted property itself is known as the "corpus" or "trust property". With the strategic and legal use of Trusts, individuals can ensure that their children and grandchildren or chosen beneficiaries are able to benefit completely from the inheritance they want them to receive.
Trustee is a legal term which, in its broadest sense, is a synonym for anyone in a position of trust and so can refer to any person who holds property, authority, or a position of trust or responsibility to transfer the title of ownership to the person named as the new owner, in a trust instrument, called a beneficiary. A trustee can also refer to a person who is allowed to do certain tasks but not able to gain income, although that is untrue. Although in the strictest sense of the term a trustee is the holder of property on behalf of a beneficiary, the more expansive sense encompasses persons who serve, for example, on the board of trustees of an institution that operates for a charity, for the benefit of the general public, or a person in the local government.
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties. Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for example, a corporate trust company or the trust department of a bank, acts in a fiduciary capacity to another party, who, for example, has entrusted funds to the fiduciary for safekeeping or investment. Likewise, financial advisers, financial planners, and asset managers, including managers of pension plans, endowments, and other tax-exempt assets, are considered fiduciaries under applicable statutes and laws. In a fiduciary relationship, one person, in a position of vulnerability, justifiably vests confidence, good faith, reliance, and trust in another whose aid, advice, or protection is sought in some matter. In such a relation, good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts.
A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.
A trust company is a corporation that acts as a fiduciary, trustee or agent of trusts and agencies. A professional trust company may be independently owned or owned by, for example, a bank or a law firm, and which specializes in being a trustee of various kinds of trusts.
Investment management is the professional asset management of various securities, including shareholdings, bonds, and other assets, such as real estate, in order to meet specified investment goals for the benefit of investors. Investors may be institutions, such as insurance companies, pension funds, corporations, charities, educational establishments, or private investors, either directly via investment contracts or, more commonly, via collective investment schemes like mutual funds, exchange-traded funds, or REITs.
The prudent man rule is based on common law stemming from the 1830 Massachusetts court formulation, Harvard College v. Amory The prudent man rule, written by Massachusetts Justice Samuel Putnam (1768-1853), directs trustees "to observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested."
In law, commingling is a breach of trust in which a fiduciary mixes funds held in care for a client with his own funds, making it difficult to determine which funds belong to the fiduciary and which belong to the client. This raises particular concerns where the funds are invested, and gains or losses from the investments must be allocated. In such circumstances, the law usually presumes that any gains run to the client and any losses run to the fiduciary who is guilty of commingling. As one source puts it, "[i]n a pejorative sense, commingling is the special vice of fiduciaries in failing to keep a beneficiary's money separate from the fiduciary's own money".
A registered investment adviser (RIA) is a firm that is an investment adviser in the United States, registered as such with the Securities and Exchange Commission or a state's securities agency. The numerous references to RIAs within the Investment Advisers Act of 1940 popularized the term, which is closely associated with the term investment adviser. An investment adviser is defined by the Securities and Exchange Commission as an individual or a firm that is in the business of giving advice about securities. However, an RIA is the actual firm, while the employees of the firm are called Investment Adviser Representatives (IARs).
A custodial account is a financial account set up for the benefit of a beneficiary, and administered by a responsible person, known as a legal guardian or custodian, who has a fiduciary obligation to the beneficiary.
United States trust law is the body of law regulating the legal instrument for holding wealth known as a trust.
Austin Wakeman Scott was a professor of law at Harvard University who wrote a ten-volume treatise covering many topics of personal trusts such as the formation and termination of express trusts, resulting and constructive trusts, and the conflicts of interest encountered in the administration of trusts. Many of Professor Scott's dictums for fiduciaries have been incorporated in the Uniform Prudent Investor Act (UPIA). His four-volume book, The Law of Trusts, was published in 1939.
An Investment policy statement (IPS) is a document, generally between an investor and the assisting investment manager, recording the agreements the two parties come to with regards to issues relating to how the investor's money is to be managed. In other cases, an IPS may also be created by an investment committee to help establish and record its own policies in order to assist in future decision-making or to help maintain consistency of its policies by future committee members or to clarify expectations for prospective money managers who may be hired by the committee.
Speight v Gaunt [1883] UKHL 1 is an English trusts law case, concerning the extent of the duty of care owed by a fiduciary.
Nestle v National Westminster Bank plc [1992] EWCA Civ 12 is an English trusts law case concerning the duty of care when a trustee is making an investment.
Cowan v Scargill [1985] Ch 270 is an English trusts law case, concerning the scope of discretion of trustees to make investments for the benefit of their members. It held that trustees cannot ignore the financial interests of the beneficiaries.
The Uniform Prudent Management of Institutional Funds Act is a uniform act that provides guidance on investment decisions and endowment expenditures for nonprofit and charitable organizations. As of 2012 UPMIFA is the law in 49 states, the District of Columbia and the U.S. Virgin Islands. Neither Pennsylvania nor Puerto Rico has adopted UPMIFA.
Personal fiduciary services are often referred to as private trust, private client, private wealth management, or private banking services.
In Trust Law, the Duty of Prudence traditionally includes the duty of a trustee to administer a trust with a degree of care, skill and caution. The degree of care required depends both on the jurisdiction on the trustee's actual or purported skill, for example if they have an accounting background, they must exercise professional care. At a minimum, a trustee is required to act with the care of a "prudent person" would in dealing with the assets of another, given the purposes, terms, and other circumstances of the trust.
The Uniform Fiduciary Income and Principal Act (UFIPA) is one of the uniform acts that have been proposed in an attempt to harmonize the law in all fifty U.S. states. UFIPA was finalized and adopted by the Uniform Law Commission (ULC) in 2018.
References
- FDIC Trust Manual
- Prudent Investor and TOLI: Part 1 - The Prudent Investor Act, Modern Portfolio Theory & Trust-Owned Life Insurance (TOLI)
- Prudent Investor and TOLI: Part 2 - Factors Determining TOLI Pricing, Performance & Suitability
- Prudent Investor and TOLI: Part 3 - Establishing a Basis for ILIT Compliance (and Best-Practices)