An individual is named in an estate document to manage and distribute someone's assets after they die.The fiduciary of the estate and its beneficiaries is known by many names, but in the case of a trust, the same person is usually known as a Trustee.Changing the trustees of a family trust can be more complicated than changing the will's administrators, but can also be done by the grantor or the beneficiaries.
Step 1: You should assess your options.
Even if you have someone in mind who you want to name your new Trustee, you should look at anyone else who might work well in the role and make your choice from a field of candidates.A Trustee may need to continue fulfilling that role for a number of years after your death, as the duties of an sceptic of a will typically will wrap up within a year or so.While most people prefer a family member to act as Trustee of their family trust, you also need someone who has a good understanding of your finances and how to handle any investments you have included in the trust.People's health and age should be taken into account.Adding someone as a co-trustee in the event your spouse can't fulfill the role would be beneficial.Family relations and potential for animosity are things you should consider.If you have two sons who are estranged from each other, you may not want to appoint them as co-trustees.
Step 2: Potential candidates to be interviewed.
You have to sit down with the people you're considering as potential trustees and make sure they understand the work and commitment involved in the role.It may seem silly to interview someone who is a family member, but you still need to make sure they understand the responsibilities of being a Trustee.You need to be able to make an objective decision as to who will be in the best position to take on the role.While you can't predict the future, you want to name someone as a Trustee who is in a stable position in life.You want to think about a backup as well.If your Trustee can't fulfill their duties, you should either name a successor Trustee or allow them to appoint someone.Look for at least two people if you want to modify an existing family trust.They can act as co-trustees or successors to the first.You will have to modify your trust again in your lifetime if you name more than one person.
Step 3: There are documents and information to be gathered.
A good understanding of the way your trust is structured, the assets contained in the trust, and what their responsibilities will be after your death is what anyone considering as a Trustee should have.You want to show them the trust document first so they understand the responsibilities that will be delegated to them as trustees.Your Trustee should have detailed information about your accounts and assets, including account numbers, passwords, and the location of important documents.Make sure those you're naming as trustees fully understand their responsibilities and fiduciary duties and are capable of performing them.If you worked with an attorney to draw up your trust documents, you may want to have him or her sit down with your potential trustees to explain the trust and answer any questions.
Step 4: Use an institutional Trustee.
If you have significant assets or the Trustee's duties are expected to last for several years, you may want to consider naming a bank or law firm as Trustee.One benefit of using a bank or law firm as a Trustee is that you won't have to worry about who will fulfill the duties when.The institution has the expertise necessary to handle your accounts and investments.It makes sense to use a bank or law firm as a successor Trustee if you don't want to name an institution as your primary Trustee.If the primary Trustee is unable to fulfill their duties, the institution will not be able to step in.
Step 5: It's time to make your final selection.
If necessary, the individual or institution you choose as your Trustee should be prepared to take on the responsibilities of the Trustee for a number of years after your death.Before you modify your trust documents, make sure the person you've chosen knows that you want them to be the trustees of the family trust and that they understand what that entails.If you choose a new Trustee to replace someone already named in your trust documents, you need to let the current Trustee know that they are being removed.Key trust beneficiaries may be aware that you intend to change the Trustee.It's a good idea to keep everyone on the same page.
Step 6: Trust documents should be evaluated.
Will your trust documents allow you to change the grantor of your family trust?If you've created an irrevocable trust, you don't have the power to change anything.The grantor of a revocable trust has the power to change the trust documents whenever they please.An irrevocable trust can't be revoked while you are alive.If you want to remove the Trustee, you don't need to revocation your trust.You can remove the trust under certain circumstances, which will be spelled out in the document itself.These circumstances include situations where the person you named as Trustee has died or is incapable of carrying out their responsibilities.Some trustees can be removed if they decide they no longer want to serve in that capacity.If all the beneficiaries are in agreement with your decision, it is possible for you to remove the Trustee and appoint someone else.
Step 7: You should talk to your beneficiaries.
If all of the trust's beneficiaries give their consent, you can change your trust documents, including naming a different Trustee, even if you've created an irrevocable trust.The trust was created for the benefit of those who were designated as beneficiaries.You can't change the benefits to which they're entitled if you want to.Changing the trustees won't really affect the beneficiaries.They're still getting the same property being held in trust for them, it's just that the person who will manage and distribute that property after your death will change.It shouldn't be hard to get your beneficiaries on board with what you want to do.If your trust document doesn't explicitly allow you to remove the Trustee and appoint someone else, you need to get the consent of the trust's beneficiaries to make the change legal.
Step 8: You should draft your restatement.
The traditional way to modify a trust is to create a document called a restatement that makes any changes you wish to make while reestablishing the validity of the portions that remain unchanged.If you used an attorney to draw up your original trust documents, you may want to call them to have the restatement drawn up for continuity and to make sure the document follows all legal requirements of your state.If you drafted your trust documents yourself, you can draft the restatement yourself.Most of the same language as your original trust documents will be used.Title your restatement "First Amendment and Restatement of", followed by the exact title of your trust listed in the original document.The history of your trust, including the date you first created it and the changes you are making, should be included in the preamble.In the preamble, you should state that you needed the consent of the beneficiaries to make the change.Refer to the clause in the original trust that allowed you to remove the Trustee and appoint someone else.The name of the Trustee will change, but your restatement will remain the same.Make sure you copy everything that isn't being changed as it is in the original document.
Step 9: Write your restatement on a piece of paper.
To be legally binding, a restatement must be signed using the same procedures that were used to sign the original trust document.If you need the consent of the trust's beneficiaries to remove the Trustee and appoint someone else, you should get signatures from all of them.Make copies of the restatement and include a copy with every other copy of your trust.If you had your estate planning attorney keep a copy of your original trust document, you should give them copies of the restatement as well.There is no confusion over which document controls.You need to make sure the new Trustee has a copy of the original trust document as well as the restatement.
Step 10: The trust documents need to be reviewed.
If you are the beneficiary of a trust and wish to remove the named Trustee after the grantor's death, the trust document may provide some mechanism by which the Trustee can be changed.If the trust document includes a clause that allows the beneficiaries to remove a Trustee and appoint someone new in their place, it usually lists specific reasons for removal.All beneficiaries must agree to remove the existing Trustee and make a decision on who the new Trustee should be.The Trustee may no longer be able to fulfill their duties.It's the most straightforward situation for the beneficiaries since you can't force someone to continue in a role they can no longer perform.You may need a judge's approval to appoint a new Trustee if the trust document doesn't name a successor.
Step 11: You should hire an attorney.
You'll need to file a petition with the court if the trust document doesn't have a clause for changing the Trustee.An experienced attorney can help you assess your options and guide you through the next steps.Since having a Trustee removed isn't a common action and typically requires complex proof of wrongdoing on the part of the existing Trustee, you may not be able to find court-approved forms and other resources to complete this action on your own.An experienced attorney will be able to navigate the discovery process and understand the procedures and formal requirements of the court.If you anticipate your petition to change the Trustee will be opposed by the existing Trustee or other beneficiaries, attorney assistance is useful.If the court grants your petition, you may be able to get reimbursement from the estate if you pay court costs and attorney's fees out of pocket.
Step 12: There is evidence to be gathered.
The trustees can be removed for certain reasons, usually related to wrongdoing on the part of the trustees.If you want the court to remove the Trustee, you need to know what he has done.Most states provide for the removal of a Trustee if they are not fit to administer the trust.Court documents related to the recent filing of the current Trustee could be used to prove that he is incapable of managing the estate's assets appropriately for the beneficiaries.If the Trustee has conflicting interests or duties, they can be removed.If the Trustee has personal financial interests that are not in line with the interests of the trust, they may not be able to administer it.If the Trustee is a member of the board of a corporation in which the trust holds a significant number of shares, there will be a conflict of interest.All states allow for the removal of trustees who are vulnerable to fraud or undue influence.You would need evidence to prove that fraud or undue influence has been attempted, or that the Trustee acted in a way that was detrimental to the interests of the beneficiaries.
Step 13: You can file a petition with the court.
To get court approval to change the Trustee of a family trust, you must first file a petition with the court.The trust document itself is a legal document and any proposed changes to it must be brought before a court.The correct court to file your petition is the one where the deceased person resided, since a trust also is an estate planning document.If you hire an attorney, they will draft a petition and ask the court to approve of the removal and allow you to appoint someone else.The judge can approve the appointment of the person you want to take the Trustee's place.The current Trustee and other beneficiaries of the trust must be served your petition once it is filed.Don't be surprised if someone files a motion to dismiss your petition if the current Trustee or other beneficiaries oppose your position.Before a judge will rule on the merits of your petition, you will have to defend your cause against such a motion.Informal discovery allows all parties involved to exchange information related to your petition.Any level of discovery can be expensive as well as time consuming.
Step 14: You should attend the hearing on your petition.
The current Trustee will have the opportunity to speak at the hearing if the court decides to remove him.All parties will present evidence supporting their position at the hearing.Similar to any other trial, the hearing will proceed with the same rules of evidence and procedure.Your attorney will usually meet with you to explain the procedures to you.Your attorney will ask you questions if you testify at the hearing.Attorneys opposing your petition will be able to ask you questions.The judge will make a decision at the end of the evidence.You can learn the judge's decision immediately, but it will be a few days before a written order is entered.