How Do You Remove the Executor of a Living Trust?

By David Carnes

The executor of a living trust, normally known as the trustee, is vested with the power to administer trust assets on behalf of the trust beneficiaries in conformity with the terms of the trust deed. The ease with which he can be removed from his position depends on a number of factors, including whether the trust is revocable or irrevocable.

Revocable and Irrevocable Living Trusts

As its name implies, a revocable living trust can be revoked by the trust grantor at any time. The trust assets legally belong to the grantor until they are distributed to beneficiaries. An irrevocable trust is difficult to revoke or amend, and as a consequence, its assets do not legally belong to the grantor; rather, they belong to the trust itself. The trust must pay taxes on any income generated by these assets. If the trust deed does not specify whether or not the trust is revocable, it is determined by state law. Different states apply different standards; some presume that the trust is revocable unless the trust deed states otherwise, while some presume that it is irrevocable unless the trust deed states otherwise.

Removing the Trustee of a Revocable Trust

The trust grantor determines the terms of the trust deed. Normally, a revocable trust contains no restrictions on the grantor's right to amend the terms of the trust by, for example, removing the trustee. If the trust deed does contain such restrictions, the grantor may either abide by these restrictions or simply revoke the trust and create a new trust with a new trustee. If no restrictions exist, the grantor may remove the trustee by simply recording an amendment to the trust deed that provides for the removal of the trustee, signing it and attaching it to the trust deed.

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Removing the Trustee of an Irrevocable Trust

The laws of the various states authorize two ways to remove the trustee of an irrevocable living trust. One way is to comply with terms for removal contained in the trust deed, if the deed contains any such term. Some trust deeds appoint a "trust protector" who is vested with the authority to remove the trustee should it become necessary or desirable. Some states do not recognize trust protectors. The other way is to petition a court to issue an order removing the trustee. A court may be reluctant to do so even with unanimous beneficiary consent, however, unless there is evidence that the trustee has engaged in misconduct such as embezzlement.

Potential Complications

Some trust deeds require the consent of all beneficiaries to remove the trustee. This might cause a problem if, for example, one of the beneficiaries is a small child without the capacity to understand the issue. The consent requirement might also cause a problem if a condition subsequent hasn't been met like if "Helen's children" are among the beneficiaries and Helen is childless at the time removal of the trustee is sought.

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References

Related articles

How to Change the Trustee of an Irrevocable Trust

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.

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.

Removing Real Estate From a Revocable Trust

Revocable trusts are often implemented to avoid probate. A trust's maker, or grantor, retains the power to fully revoke or amend a revocable trust. A trust is governed by its terms and adding or removing real estate from a trust is a power that is usually specifically listed. If a trust lacks this provision, an amendment may be legally required before real estate can be added or removed. Trust requirements may vary, depending on state law.

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