Being a Trustee, especially a successor Trustee to a family member, can be a thankless job. Sometimes people are not aware they have been chosen for this responsibility until after the death of a loved one who has named them as Trustee in a revocable trust. Perhaps the Trust was created years ago, and several other individuals were named ahead of them. These individuals
are now also deceased, or at a place in life where they simply cannot honor this request. Perhaps the Settlor, or creator of the Trust, didn’t think it would come to this and never got around to informing each of the successor Trustees of their pending responsibilities.
If you find yourself in this situation, or know of a loved one who is, the best advice you may be able to give them is to remind them that they are not obligated to accept this role if they are not ready. Trust administration can be difficult, and if a Trustee feels they lack the time or competence to administer the Trust, it may be better to bow out before things get started.
The most reoccurring challenge we have faced in Trust litigation is Trustee competence. Not Trustee intelligence. Nor Trustee good intentions. Sometimes what was a good pick for a Trustee at the time the Trust was created, has become a poor choice over time. If the potential successor Trustee is too old, too ill, or simply does not have the time to commit to Trustee responsibilities, intelligence and good intentions will not be enough. The role of Trustee is typically more demanding than the role of Personal Representative (executor) because depending on the amount and type of assets in the Trust and the Decedent’s timeline for distribution, the
Trustee role can last for many years.
Another concern when agreeing to become a successor Trustee is the lack of judicial oversight. Wills are subject to Probate Court proceedings. Trusts are not. This remains the case until an unhappy beneficiary files a lawsuit.
If you have been asked to perform the duties of successor Trustee, it is a wise first step to seek independent probate counsel to help you first understand the process, before you agree to assume this role. Contact CASHMAN LAW today for a free consultation to see how we might assist.
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not reflect the most current legal developments. Please contact CASHMAN LAW FIRM LLLC (Hawai’i)/ CASHMAN LAW LC (California) to consult with an attorney for advice on specific legal issues