How Can I Get a Successor Trustee to take Over?

By Harry Margolis

Posted August 26, 2019

In Revocable Trusts, Trustee

Question:

What is the procedure for a trustee who has successor rights to take over as trustee?

Photo by Zach Lucero on Unsplash

Response:

Typically, the named successor trustee to a trust does not take over until the existing trustee stops serving, whether due to his or her resignation, removal, or death. Also, while the trust may give someone the power to remove a trustee, typically it’s not the future trustee who has that power.

Most trustees will resign if they’ve reached an impasse with one or more beneficiaries since, as they say, life is short. They don’t need the aggravation and it can be difficult to meet their fiduciary obligations if the lines of communication with the beneficiary have been damaged. Nonetheless, before stepping down, they will want to be assured of the qualifications of the successor trustee.

If a trustee refuses to step down, and the trust doesn’t grant anyone the power of removal, the beneficiaries can go to court to seek the the trustee’s removal. This approach, however, is fraught with obstacles. First, the trustee can use the trust funds to fight the court case. Second, the court will first seek to advance the trust grantor’s intent. Since the grantor presumably chose the original trustee, the burden of proof will be on the person seeking the trustee’s removal to show malfeasance, such as misuse of trust funds or neglect (such as no oversight of trust investments or failure to communicate with the beneficiaries). In some cases, it may be possible to ask the court to order the trustee to reimburse funds lost by the trust either through malfeasance or for legal fees, but there are no guarantees of success.

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