San Francisco, CA asked in Estate Planning and Probate for California

Q: if cotrustees disagree, can successor trustee be the majority, if states in the trust that majority rules

irrevocable trust where my brother and I are cotrustees, states that majority rules. my son is successor trustee. can he step up and be the final say. brother refuses to sign any documents transferring moms assets to trust account and won't allow distributions to be made. this is holding up the settlement of the trust. if my son is the majority, are there any forms to file or serve and will the financial institutions recognize him.

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3 Lawyer Answers
Bill Sweeney
Bill Sweeney
PREMIUM
Answered
  • Probate Lawyer
  • San Juan Capistrano, CA
  • Licensed in California

A: Hopefully the trust will tell you what steps to take if their is no majority possible. If not, you need to retain a competent attorney who can advise on the next step, including a petition for court guidance.

Gerald Barry Dorfman agrees with this answer

Sally Bergman
Sally Bergman
Answered
  • Estate Planning Lawyer
  • San Mateo, CA
  • Licensed in California

A: In most trusts, the successor trustee does not step in until such time as one of the original trustees is no longer able to act, so it is not likely that your son would be allowed to step in to then form a majority opinion with you. Hopefully, your trust should have some provision for what happens if cotrustees are not able to reach an agreement. Unfortunately, if it does not, you might have to petition the court for instructions.

Gerald Barry Dorfman agrees with this answer

David L. Crockett
David L. Crockett
PREMIUM
Answered
  • Estate Planning Lawyer
  • Newport Beach, CA
  • Licensed in California

A: Sorry to hear of you plight. I see this pretty frequently where parents drawing up a trust assume that everyone will get along and be cooperative. The document saying "majority rules" when there are only 2 trustees creates an impasse. Your son as successor trustee wouldn't be able to vote. This is a situation where you will need a Judge to break the impasse and require your brother to cooperate.

Unfortunately, the legal system is so clogged in most counties that it takes many months to get the before a Judge and sometimes up to a year. You need to first make a appropriate written demand on your brother to perform and then if he doesn't file a court petition (lawsuit) to get this started working its way through the court system. For a demand letter to be most effective and to lay the groundwork for a court petition, you need a lawyer to review the entire trust first, confer with you about all the facts and finances, and then prepare it. Basically, the longer this goes on the worse it gets so you might as well get started.

Sometimes, when persons like your brother are confronted with a lawyer's demand letter, they know the jig is up and become cooperative. Sometimes it takes awhile for it to sink in, especially after a lawsuit is filed and delivered to them, and they figure out that being obstinate and uncooperative can lead to serious legal consequences and many thousands of dollars in legal fees and court costs (sometimes tens of thousands of dollars !!)

I hope this doesn't seem too blunt to you but I like to tell it like it is.

David L. Crockett, attorney, CPA, real estate broker

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