Can I Change a Successor Trustee Without a Lawyer?

By David Carnes

A successor trustee of a trust is the party appointed to replace the trustee named in the original trust deed. There are a number of ways to replace a successor trustee and none of them absolutely require that you retain a lawyer. Keep in mind that state laws vary somewhat on the process of replacing a successor trustee.

Replacement by Grantor or Beneficiaries

If the trust is revocable -- as stated in the trust deed or presumed by state law -- the grantor may simply revoke the trust and create a new trust with a new trustee. If the trust deed so allows, he may unilaterally replace the trustee without revoking the original trust. If the trust is irrevocable -- either by the terms of the trust deed because the grantor has died or because the trust was created by the grantor's will -- the trust deed may still contain a provision allowing beneficiaries to unanimously agree to replace the trustee. Under these circumstances, replacement of a successor trustee does not require a court order.

Replacement by Trust Protector

A trust protector is a position, created by some trust deeds, whose sole purpose is to hire and fire trustees. The trust protector may be an individual or an entity. The trust deed may grant the trust protector the unfettered right to replace the trustee or it may require that removal is based on specified grounds only. The trust protector does not need a court order to act, yet neither the grantor nor the beneficiaries can force him to act. Beneficiaries seeking trustee replacement may appeal to the trust protector to replace the trustee.

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Replacement by Court Order

A trustee may be removed by court order. The trust grantor or beneficiaries may file a petition demanding the removal of the trustee. Courts in some states, such as Pennsylvania, will automatically replace a trustee if the grantor and all beneficiaries consent. Other states require the replacement is based on grounds -- a trustee cannot be removed for simply making decisions that are unpopular with beneficiaries. Two types of misconduct are possible --- breach of the fiduciary duties of loyalty and care, such as by embezzling or carelessly managing funds, and breach of the grantor's original intentions as expressed in the trust deed.

Trustee Qualifications

A trustee may be either an individual or an entity such as a trust company. If an individual, he must be at least 18 years old. A trustee must also possess full legal rights to perform acts such as managing money or selling property. For example, if the trustee is an individual, he must be mentally incompetent; if a corporation, he must be validly incorporated under state law. Finally, he must be willing and able to perform both his fiduciary duties and his duties under the trust deed.

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Trustee Resignation and Appointment

A trustee's right to resign his position is not absolute. The trustee's resignation must be authorized by the trust document or state law, and a trustee can face civil liability for failing to fulfill his duties under the law. The appointment of a successor trustee is governed by the trust document if it contains such a provision or by state law if it does not.

The Format for Resignation and Acceptance of a Trustee for California

A trustee of a trust is an individual or entity responsible for managing the assets of the trust in accordance with terms established by the trust grantor. Under California law, a trustee does not necessarily have an unqualified right to resign his position. Furthermore, a successor trustee may be appointed only in compliance with statutory procedures.

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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