Page 73 - Successor Trustee Handbook

Alternatively, by naming a new person to act as a Co-Trustee with the Trustor, even if
the Trustor delegates most actions to the new Trustee, the Trustor can feel a lot more
comfortable with the fact that he or she will still be involved in handling his or her own
affairs. If the Trustor is the surviving spouse of a married couple, the Trust document will
need to be consulted to be sure the Trustor has the requisite power to amend
(sometimes a surviving spouse can only amend the “Survivor’s Trust” and not the
“Exemption Trust” or “Marital Trust”).

If the existing Trustor-Trustee is not legally capable of signing a resignation or
amending the Trust (may be incapacitated), it may be necessary for you, as the named
successor Trustee (or existing Co-Trustee), to take certain actions. These actions are
dependent upon the terms of the Trust document. Typically, you will need to obtain
doctor's letters. The number of letters needed and the exact language these letters
should include is, again, dictated by the exact language of the Trust. Generally, each of
the doctor's letters should be on the physician’s letterhead and should include the
following statements: (1) the physician is duly licensed to practice medicine in his or her
state; (2) the doctor has attended to or is currently attending to the care of the Trustee
and recently examined him or her; (3) a brief description of the incapacity ailments
which the Trustee suffers from; and, (4) in the opinion of the doctor, the Trustee is no
longer capable of handling his or her own affairs due to the described ailments. The
doctor's letters do not need to be notarized. You may need to present the Trustor-
Trustee’s “HIPAA Authorization” in order to allow the doctors to release the medical
information contained in the letters; if it cannot be located, it may be possible for you
to execute one under the Trustor’s Power of Attorney document, or the Trustor’s attorney
may be able to write a letter to the doctors, enabling you to access the medical
information. If it is not possible to get these two doctor letters, there are other
alternatives for declaring the Trustee incapacitated so that the next Trustee may act.
The Trust itself may contain a backup procedure for a “Trust Protector” or some other
third-party or “panel” to make the determination of incapacity. The last alternative, if
none of the above procedures work or are available, is for you or some other party to
file a petition in the Probate Court to have a judge determine the Trustee’s incapacity.
(See also the Chapter, “Checklist of Immediate Actions Upon Disability or Incapacity”
regarding the situation where the Trustee is the Trustor).

The succession of Trusteeship, upon the death of a Trustee, is a fairly simple matter. An
original death certificate (not a photocopy or other facsimile) will be needed to
establish the death, after which the further procedures discussed below will occur.

In some cases, a Trustee may be removed, so that the next Trustee may act.
Sometimes, the Trust document itself will provide that either certain beneficiaries or a
“panel” or a third-party such as a “Trust Protector” has the ability to remove the Trustee
whether or not there is a cause. Regardless of the terms of the Trust document, it is also
possible for the Trust beneficiaries to remove the acting Trustee, if he or she is not
properly fulfilling his or her duties or not properly exercising his or her powers, by filing a
petition with the Probate Court and proving the reasons for removal.

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