Though exculpation clauses are contained in many wills and trusts, for many if not most scriveners little thought is given to their use or enforceability or the means to maximize their effectiveness. Rather, exculpation clauses are treated as boilerplate deserving little attention in the practice of a busy attorney. This article addresses several important aspects of exculpation clauses that can enable trusts and estates attorneys to better serve their clients.

What Is an Exculpation Clause?

An exculpation clause is a provision in a trust designed to relieve a trustee from liability for certain breaches of fiduciary duty that might otherwise give rise to surcharge. The common rationale for use of the clause is to induce an individual to act as trustee. Whether the clause actually serves that purpose is often questionable, however, as it seems doubtful that attorneys commonly explain either to settlors or prospective trustees the nature or significance of the clause.