The death of a trustee under a living trust means the successor trustee, also named in the living trust, assumes the trustee’s duties. Since the trustee holds legal title to trust property, the property is held in the trustee's name. As a result, the successor trustee must prepare the necessary documents to change title to the trust property.
Successor Trustee Basics
A properly prepared trust document contains a provision for appointment of a successor trustee when the trustee dies. More than one alternate successor trustee may be named in the trust document as a means of resolving a situation in which the first-named successor trustee predeceases the original trustee or is otherwise unable or unwilling to carry out the duties of trustee. The successor trustee’s authority to act under the trust arises upon the death of the trustee; there is no need for court intervention or approval. The successor trustee should obtain the original trust document and determine what assets are included in the trust. For assets that typically include some form of registered title, such as real estate, bank accounts or stock certificates, the successor trustee must prepare the appropriate documents to transfer title from the original trustee’s name to his own name. In the event that none of the successor trustees named in the trust document are able to assume the trustee’s duties for whatever reason, an interested person will have to petition the court for appointment as successor trustee.
To change title of trust assets and obtain possession of them, the successor trustee must provide third parties, such as financial institutions, proof of the trustee's death and existence of the trust. As evidence of the trustee's death, the successor trustee should use a certified copy of the trustee's death certificate. Several copies of the death certificate should be obtained as soon as possible after the trustee's death.
Certification of Trust
A copy of the death certificate is commonly used in conjunction with another document called a certification of trust. The certification provides a third party with evidence of the trust and successor trustee's authority to act under the trust. The successor trustee can prepare the certification in accordance with state law, which typically requires the certification be comprised of a short recitation of the facts to identify the trust, such as when it was created, the maker of the trust and name and address of the successor trustee. The certification usually includes certain assurances, such as stating the trust has not been revoked, modified or amended. In some instances, state law-approved forms for certification of trust can be obtained from a government office, such as the secretary of state. Often, a third party that regularly deals with name changes on titles will furnish a certification of trust that complies with state law.
Affidavit of Death of Trustee
The title to real estate included in a living trust is recorded with a local government office such as the county recorder, county clerk or court. Transferring title to real estate from the trustee's name to the successor trustee's name is accomplished by preparing and recording an Affidavit of Death of Trustee form with the appropriate office. An affidavit form is typically available from the government recording office or local law library.
References & Resources
- American Bar Association: Living Trusts
- Toews & Murphy, Inc.: Settling the Revocable Trust in California
- California Legislature: Probate Code Sections 15660 -- 15660.5
- The Way Law Firm P.C.: How to Administer a Simple Trust
- Arizona Legislature: Arizona Trust Code Section 14-11013 Certification of Trust
- Wyoming Secretary of State: Statutory Trust, Certificate of Trust
- Alabama Credit Union: Certification of Trust
- Sacramento County Law Library: Affidavit of Death of Trustee