(a) If the terms of a governing instrument confer upon a cotrustee, to the exclusion of another cotrustee, the power to take certain actions with respect to the trust, including the power to direct or prevent certain actions of the trustees, the duty and liability of the excluded trustee is as follows:
(1) If the terms of the governing instrument confer upon the cotrustee the power to direct certain actions of the excluded trustee, the excluded trustee must act in accordance with the direction and shall have no duty to act in the absence of such direction and is not liable, individually or as a fiduciary, for any loss resulting directly or indirectly from compliance with the direction unless compliance with the direction constitutes wilful misconduct on the part of the directed cotrustee;
(2) If the terms of the governing instrument confer upon the cotrustee exclusive authority to exercise any power, the excluded trustee is not liable, individually or as a fiduciary, for any loss resulting directly or indirectly from the action taken by the cotrustee in the exercise of the power, such that the excluded trustee shall not be a fiduciary with respect to any power as to which the governing instrument has conferred upon the cotrustee exclusive authority in accordance with this paragraph (a)(2), but shall remain a fiduciary with respect to any powers or other matters as to which the governing instrument has not conferred exclusive authority on the cotrustee; and
(3) The excluded trustee has no duty to monitor the conduct of the cotrustee, provide advice to the cotrustee or consult with or request directions from the cotrustee. The excluded trustee is not required to give notice to any beneficiary of any action taken or not taken by the cotrustee whether or not the excluded trustee agrees with the result. Administrative actions taken by the excluded trustee for the purpose of implementing directions of the cotrustee, including confirming that the directions of the cotrustee have been carried out, do not constitute monitoring of the cotrustee nor do they constitute participation in decisions within the scope of the cotrustee's authority.
(b) The cotrustee holding the power to take certain actions with respect to the trust shall be liable to the beneficiaries with respect to the exercise of the power as if the excluded trustee were not in office and shall have the exclusive obligation to account to the beneficiaries and defend any action brought by the beneficiaries with respect to the exercise of the power.
Structure Delaware Code
Title 12 - Decedents' Estates and Fiduciary Relations
Chapter 33. ADMINISTRATIVE PROVISIONS
§ 3304. Retention by fiduciary of decedent's or settlor's investments.
§ 3305. Retention by bank or trust company acting as a fiduciary of its own stock.
§ 3306. Deviation from terms of instrument.
§ 3307. Common fund investments by bank or trust company; regulations.
§ 3309. Identification of securities.
§ 3310. Storage of securities.
§ 3311. Deposit of securities in clearing corporation.
§ 3313. Advisers [For application of this section, see 80 Del. Laws, c. 153, § 5].
§ 3314. Limitation on certain fiduciary powers.
§ 3315. Trustee's exercise of discretion; review by court; discretionary interests.
§ 3316. Substituted property; equivalent value; fiduciary duty.
§ 3317. Cofiduciaries and co-nonfiduciaries; duty to keep informed.
§ 3321. Applicability of chapter; definitions.
§ 3322. Fiduciary agency contracts; delegation.
§ 3323. Cofiduciaries and co-nonfiduciaries.
§ 3324. General powers of trustee.
§ 3326. Resignation of an officeholder.
§ 3327. Removal of an officeholder.
§ 3328. Limitation on personal liability of fiduciary.
§ 3329. Effect of no-contest provision.
§ 3335. Effect of formula clauses in certain wills and trusts.
§ 3339. Designated representatives of trusts.
§ 3340. Place of administration [For application of this section, see 80 Del. Laws, c. 153, § 5].
§ 3342. Modification of trust by consent while trustor is living.
§ 3343. Authority to allocate trustee duties among multiple trustees.