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My client wants to change her irrevocable trust because her daughter is the trustee and they no longer speak. Is this possible? How would I do so?

 
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Editor's Response

I will assume that, although you use the term 'client,' you are not an attorney.  Well-drafted irrevocable trusts often contain language that allows for a change in trustee.  If not, your client may have to ask a  court to judicially reform the trust.  In either case, she will have to show the document to an experienced estate planning attorney.  This is not a do-it-yourself project.  For more information or to post a question, visit our MA Estate Planning Discussion Forum. Good luck.

 

Change of Trustee for an Irrevocable Real Estate Trust

My mother had appointed a trustee for her trust that was also the executor of her will. When she went to the lawyer last year to have him removed from "everything" the lawyer only removed him from being the executor of the will. I was appointed. He forgot to remove him from being the trustee. She is still alive. The trust states that she can change the trusteeby delivering to the trustee an instrument designating the change. The last sentence in Article VIIII Succession of Trustees says "Except in the case of appointment by court, any appointment of a new or succeeding Trustee shall be by agreement in writing, duly signed and acknowledge before a notary public." That appears to say that it isn't required yet there is a specific paper that was filed that has his name on it. It's a small form and I think it was notarized and may have been filed at the registry of deeds or somewhere.

Is it necessary to see a lawyer to change the trustee? Is there a special form. Can I get this form myself? My mother is concerned about the cost of returning to the lawyer and paying yet once again.

Change of trustee for an irrevocable real estate trust

Submitted Wed, 04/06/2011 - 16:12.

I think that it is possible for you to create the necessary paperwork to remove the existing trustee and appoint a new trustee. But I have to say that I would urge you to proceed with caution. I do not know your skill-set, or the provisions of the trust – but please consider:
 
First, the trust apparently holds real estate, and that means that any change to the trustee would have to be memorialized at the proper registry of deeds. Most likely I would record a "trust certificate" with the Registry that sets forth the removal of the sitting trustee (“by written instrument signed by the Donor and ...” (whatever is required by the trust in terms of procedure)), and the appointment of the new trustee (“Appointed in writing and such appointment was accepted before a notary” - again, whatever is required by the trust document). If there is a problem with the document that you record, you will create a cloud on the title.
 
The second issue is that you really have to understand the procedure established in the trust document to effect the change. Careful reading and common sense will carry you a long way. Before you dive in, you may want to talk with the attorney. It is possible that the attorney already charged you to prepare the necessary documents and there has been some sort of oversight. This really is one of those situations where you can easily do $1,000 worth of damage trying to save $500 in fees. Hope that helps.
 
Attorney Peter Bernardin
 

Removal of Trustee UPDATE

Under the new Massachusetts Uniform Trust Code, (See Section 706 of Massachusetts General Laws Chapter 203E) a trustee may now be removed: (1) for any serious breach of the trust; (2) if there is a lack of cooperation among among co-trustees that creates a situation where the administration of the trust is substantially impaired; (3) if the trustee is unfit to perform her duties or has persistently failed to administer the trust effectively: (4) removal of the trustee would be in her best interests, (5) a substantial change in circumstances warrants removal of the trustee, or (6) if removal of the trustee is requested by all “qualified beneficiaries” (See Section 103 or Chapter 203E).  Under the new law, in all cases, removal must be in the best interests of the beneficiaries and cannot be inconsistent with a material purpose of the trust.

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