Page 14 - Successor Trustee Handbook

The second way that you may take over as Trustee is for the Trustor to sign a Living Trust
Amendment, which states that you are now appointed to serve as immediate sole Trustee
(or as Co-Trustee with the Trustor, if he or she wishes). An amendment has certain
advantages over a resignation, in that the Trustor is affirmatively stating his or her wishes to
have you act immediately so there is less likelihood of other persons questioning your
authority. In addition, the Trustor is spared the emotional disappointment of acknowledging
his or her inability or unwillingness to act, and the Trustor may choose to continue to act as
a Co-Trustee with you until he or she feels comfortable enough to resign and let you solely
handle his or her affairs. However, whether the Trustor voluntarily resigns or amends the
Trust, there is still a possibility that his or her actions can be questioned on the basis of
whether he or she had the legal capacity to do so.

Therefore, the third (and usually most preferable) way for you to take over as
Trustee, is through obtaining attending doctor letters stating that the Trustor, in the
opinion of each of the doctors, is no longer able to handle his or her own affairs (whether
one letter will be sufficient and what the exact wording of the doctor letters will be is
dictated by the language contained in the Living Trust document). Sometimes, the Trust
document may provide for a “panel” of people to determine that the Trustor is
incapacitated, without the need or requirement of doctor letters. Note: If you instead
obtain two attending doctor letters stating that the Trustor is capable of handling his or her
own affairs, these can be used as support for having the Trustor either resign or amend the
Trust; but if the Trustor does not wish to do so and you believe that he or she lacks the
ability to continue to handle his or her own affairs despite the positive doctor letters, it may
be necessary for you to file a petition in Probate Court to have a judge determine the
Trustor’s capacity.

The final way you may take over as Trustee can be dictated in the Living Trust document
itself. Sometimes, the beneficiaries or a special party to the Trust (such as a “Special Co-
Trustee” or “Trust Protector”) may have the authority to appoint and install you as the acting
Trustee. If the Trust does not provide for this and all of the other options fail, you may need
to file a petition with the Probate Court to install you as the new Trustee (or to act as the
Trustor’s “guardian” or “conservator”).

Regardless of the procedure used, you will likely need a “Trust Certification” document
prepared by an attorney that verifies your authority to act as Trustee; that way, you will be
able to transact business more quickly and smoothly with third parties, such as banks,
mutual fund companies, real estate escrows, etc. (For more details, see the Chapter,
“Transition to Another Trustee”). (Also note: you may be named as “agent” under the
Trustor’s Durable Power of Attorney and may have to utilize that document to take certain
urgent, immediate actions that may be necessary before you are formally installed as
Trustee.)

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