How to Change the Trustee of an Irrevocable Trust

By David Carnes

A trust is a legal device that allows you to place your assets under the care of a trustee for eventual distribution to beneficiaries you select. An irrevocable trust is a trust that you may not unilaterally revoke because the trust assets no longer legally belong to you. However, under certain circumstances it is possible to replace the trustee of an irrevocable trust. Although state laws differ somewhat on the procedure for replacing a trustee, the basic principles are the same in every state.

A trust is a legal device that allows you to place your assets under the care of a trustee for eventual distribution to beneficiaries you select. An irrevocable trust is a trust that you may not unilaterally revoke because the trust assets no longer legally belong to you. However, under certain circumstances it is possible to replace the trustee of an irrevocable trust. Although state laws differ somewhat on the procedure for replacing a trustee, the basic principles are the same in every state.

Step 1

Examine the trust deed to find procedures for replacing the trustee. If the trust deed includes such procedures, follow them.

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Step 2

Contact all trust beneficiaries and obtain their consent to the amendment of the trust to remove the trustee. This may be ineffective, however, if any of the beneficiaries is a minor or if there are unnamed beneficiaries ("Paul's children", for example, if Paul doesn't yet have children).

Step 3

Contact the trust grantor and obtain his consent to the replacement of the trustee, if he is still alive. Some states require a living grantor to consent to the replacement of the trustee, and some states do not.

Step 4

Appoint a replacement trustee and obtain his consent to the appointment. If the trust deed names an alternate trustee, appoint the alternate trustee. If the new trustee is an individual rather than a company, he must be at least 18 years old. To avoid a potential conflict of interest, don't appoint a beneficiary as trustee.

Step 5

Draft a court motion to replace the trustee that includes legal grounds for replacement. These grounds may include mismanagement of trust assets, fraud, self-dealing or mental incompetence. Depending on state law, a court may grant an order to replace the trustee on the strength of the beneficiaries' consent alone. However, your motion may have a better chance of success if you include legal grounds for replacement. Have all beneficiaries sign the motion.

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Can I Change a Successor Trustee Without a Lawyer?

References

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How to Delete a Trustee From a Trust in California

A trust is a legal device that allows someone to place assets under the control of a trustee for distribution to beneficiaries. It is often used to avoid probate upon the death of the person who funded the trust, known as the settlor. If the trust is revocable, the settlor may simply revoke or amend the trust to replace the trustee. Replacing the trustee becomes more difficult, however, if the trust is irrevocable. Under certain circumstances, however, California law allows the replacement of the trustee of an irrevocable trust.

Can the Powers of the Successor Trustee Be Revoked?

A successor trustee is a trustee who takes over management of a trust after the original trustee leaves office. He may be a party named in the trust deed, consented to by the trust grantor or beneficiaries, or appointed by a court. State laws provide several ways in which a successor trustee's powers can be revoked and the trustee removed from the position.

How to Break an Irrevocable Trust

Two types of trusts are possible: a revocable trust and an irrevocable trust. Although the grantor can unilaterally revoke a revocable trust, even a revocable trust becomes irrevocable when the grantor dies. The assets of an irrevocable trust belong to the trust beneficiaries, not the grantor. Even an irrevocable trust can be revoked under certain circumstances, although it is almost impossible for a creditor of the grantor or a beneficiary to revoke it. Although the trust laws of the various states differ on the grounds and procedures for revocation, they are all based on similar principles.

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