Q: Can successor co-trustees name successor trustees if this power isn't specifically given in the trust?
Settlors created the trust in 1988 naming themselves trustees and then their two adult children, a son and a daughter. The primary trust asset is property in California. The two "children" are now in their 80's. The daughter lives out of state and has never participated in the work of the trust. The son, who lives in CA, has done all the work of the trust but is now in failing heath. No mechanism is provided for the naming of trustees after the two children. The 82 year old daughter in no way wants to take on the trust at this point and the 87 year old son is in congested heart failure. They are given the power make "significant" decisions in writing. Can they agree in writing to the naming of successor trustees?
A:
If the 'children' are mentally competent to the extent that they would understand that they are granting a power under the trust, and the trustees also have enumerated powers under the trust that include the power to engage an agent, or attorney-in-fact, (power of attorney); you might consider having trustees grant a power of attorney to a third party and empower that third party as appropriate and permissible under the trust. It would be a good idea to have an attorney read the trust thoroughly.
Jonathan Purcell is a California Attorney. This posting does not create any attorney-client relationship. The information presented here is general in nature and is not intended nor should be construed as legal advice for any particular case or client. For specific advice about your particular situation, please consult with your own attorney. This posting is not intended to constitute an advertisement or a solicitation.
A:
If the trust agreement doesn’t give a trustee the authority to appoint a successor trustee, a trustee or a beneficiary needs to petition the probate court to appoint the new trustee.
If not, perhaps the trustee has the authority to delegate trustee powers to an agent under the trust agreement. That’s a way around the requirement of court approval.
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