What Forms Are Needed to Appoint a Successor Trustee?
Full Question:
I am adding a Successor Trustee to a trust. I am not the original trustee but am now the sole trustee. I am wondering which forms to use from the US Legal Forms shown on the page below. Do I also need the 'Consent of successor trustee' form? http://secure.uslegalforms.com/cgi-bin/forms/search.pl?&state=CA&rating=all&field=title&altform=&memform=&query=successor%20trustee
07/08/2009 |
Category: Trusts |
State: California |
#17390
Answer:
The forms you need will depend on the facts involved, such as whether you are resigning, being removed through court order, or adding a trustee as a co-trustee. Some of the forms on the page you linked to would need to be modified to suit your needs if you are not the original trustee. A written consent/acceptance should be obtained from a successor trustee.
We can assist you with searching to locate forms or we can draft add forms you may need to our database. However, we cannot advise you to use one particular form over another that address the same matter. We can show you what is available. You can take a look at the
forms below and see if they fit your need. If they do not, let me know and we may be able to add a form for your need. You may order a form or package by phone by calling Toll Free: 1-(877) 389-0141 - 8:30-5:00 Central Time Zone Monday – Friday.
The following are CA statutes:
15640. A trustee who has accepted the trust may resign only by one
of the following methods:
(a) As provided in the trust instrument.
(b) In the case of a revocable trust, with the consent of the
person holding the power to revoke the trust.
(c) In the case of a trust that is not revocable, with the consent
of all adult beneficiaries who are receiving or are entitled to
receive income under the trust or to receive a distribution of
principal if the trust were terminated at the time consent is sought.
If a beneficiary has a conservator, the conservator may consent to
the trustee's resignation on behalf of the conservatee without
obtaining court approval. Without limiting the power of the
beneficiary to consent to the trustee's resignation, if the
beneficiary has designated an attorney in fact who has the power
under the power of attorney to consent to the trustee's resignation,
the attorney in fact may consent to the resignation.
(d) Pursuant to a court order obtained on petition by the trustee
under Section 17200. The court shall accept the trustee's
resignation and may make any orders necessary for the preservation of
the trust property, including the appointment of a receiver or a
temporary trustee.
15641.
The liability for acts or omissions of a resigning trustee
or of the sureties on the trustee's bond, if any, is not released or
affected in any manner by the trustee's resignation.
15642.
(a) A trustee may be removed in accordance with the trust
instrument, by the court on its own motion, or on petition of a
settlor, cotrustee, or beneficiary under Section 17200.
(b) The grounds for removal of a trustee by the court include the
following:
(1) Where the trustee has committed a breach of the trust.
(2) Where the trustee is insolvent or otherwise unfit to
administer the trust.
(3) Where hostility or lack of cooperation among cotrustees
impairs the administration of the trust.
(4) Where the trustee fails or declines to act.
(5) Where the trustee's compensation is excessive under the
circumstances.
(6) Where the sole trustee is a person described in subdivision
(a) of Section 21350, whether or not the person is the transferee of
a donative transfer by the transferor, unless, based upon any
evidence of the intent of the settlor and all other facts and
circumstances, which shall be made known to the court, the court
finds that it is consistent with the settlor's intent that the
trustee continue to serve and that this intent was not the product of
fraud, menace, duress, or undue influence. Any waiver by the settlor
of this provision is against public policy and shall be void. This
paragraph shall not apply to instruments that became irrevocable on
or before January 1, 1994. This paragraph shall not apply if any of
the following conditions are met:
(A) The settlor is related by blood or marriage to, or is a
cohabitant with, any one or more of the trustees, the person who
drafted or transcribed the instrument, or the person who caused the
instrument to be transcribed.
(B) The instrument is reviewed by an independent attorney who
(1)
counsels the settlor about the nature of his or her intended trustee
designation and
(2) signs and delivers to the settlor and the
designated trustee a certificate in substantially the following form:
"CERTIFICATE OF INDEPENDENT REVIEW
I, _____________________, have reviewed ______________________
(attorney's name) (name of instrument)
and have counseled my client, ____________________, fully and
(name of client)
privately on the nature and legal effect of the designation as
trustee of _______________________________
(name of trustee)
contained in that instrument. I am so disassociated from the
interest of the person named as trustee as to be in a position to
advise my client impartially and confidentially as to the
consequences of the designation. On the basis of this counsel, I
conclude that the designation of a person who would otherwise be
subject to removal under paragraph (6) of subdivision (b) of Section
15642 of the Probate Code is clearly the settlor's intent and
thatintent is not the product of fraud, menace, duress, or undue
influence.
___________________________ _________________"
(Name of Attorney) (Date)
This independent review and certification may occur either before or
after the instrument has been executed, and if it occurs after the
date of execution, the named trustee shall not be subject to removal
under this paragraph. Any attorney whose written engagement signed
by the client is expressly limited to the preparation of a
certificate under this subdivision, including the prior counseling,
shall not be considered to otherwise represent the client.
(C) After full disclosure of the relationships of the persons
involved, the instrument is approved pursuant to an order under
Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of
Division 4.
(7) If, as determined under Part 17 (commencing with Section 810)
of Division 2, the trustee is substantially unable to manage the
trust's financial resources or is otherwise substantially unable to
execute properly the duties of the office. When the trustee holds the
power to revoke the trust, substantial inability to manage the trust'
s financial resources or otherwise execute properly the duties of the
office may not be proved solely by isolated incidents of negligence
or improvidence.
(8) If the trustee is substantially unable to resist fraud or
undue influence. When the trustee holds the power to revoke the
trust, substantial inability to resist fraud or undue influence may
not be proved solely by isolated incidents of negligence or
improvidence.
(9) For other good cause.
(c) If, pursuant to paragraph (6) of subdivision (b), the court
finds that the designation of the trustee was not consistent with the
intent of the settlor or was the product of fraud, menace, duress,
or undue influence, the person being removed as trustee shall bear
all costs of the proceeding, including reasonable attorney's fees.
(d) If the court finds that the petition for removal of the
trustee was filed in bad faith and that removal would be contrary to
the settlor's intent, the court may order that the person or persons
seeking the removal of the trustee bear all or any part of the costs
of the proceeding, including reasonable attorney's fees.
(e) If it appears to the court that trust property or the
interests of a beneficiary may suffer loss or injury pending a
decision on a petition for removal of a trustee and any appellate
review, the court may, on its own motion or on petition of a
cotrustee or beneficiary, compel the trustee whose removal is sought
to surrender trust property to a cotrustee or to a receiver or
temporary trustee. The court may also suspend the powers of the
trustee to the extent the court deems necessary.
(f) For purposes of this section, the term "related by blood or
marriage" shall include persons within the seventh degree.
15643. There is a vacancy in the office of trustee in any of the
following circumstances:
(a) The person named as trustee rejects the trust.
(b) The person named as trustee cannot be identified or does not
exist.
(c) The trustee resigns or is removed.
(d) The trustee dies.
(e) A conservator or guardian of the person or estate of an
individual trustee is appointed.
(f) The trustee files a petition for adjudication of bankruptcy or
for approval of an arrangement, composition, or other extension
under the federal Bankruptcy Code, or a petition filed against the
trustee for any of these purposes is approved.
(g) A trust company's charter is revoked or powers are suspended,
if the revocation or suspension is to be in effect for a period of 30
days or more.
(h) A receiver is appointed for a trust company if the appointment
is not vacated within a period of 30 days.
15644.
When a vacancy has occurred in the office of trustee, the
former trustee who holds property of the trust shall deliver the
trust property to the successor trustee or a person appointed by the
court to receive the property and remains responsible for the trust
property until it is delivered. A trustee who has resigned or is
removed has the powers reasonably necessary under the circumstances
to preserve the trust property until it is delivered to the successor
trustee and to perform actions necessary to complete the resigning
or removed trustee's administration of the trust.
15645.
If the trustee of a trust that is not revocable has refused
to transfer administration of the trust to a successor trust company
on request of the beneficiaries described in subdivision (c) of
Section 15640 and the court in subsequent proceedings under Section
17200 makes an order removing the existing trustee and appointing a
trust company as successor trustee, the court may, in its discretion,
award costs and reasonable attorney's fees incurred by the
petitioner in the proceeding to be paid by the trustee or from the
trust as ordered by the court.
15600.
(a) The person named as trustee may accept the trust, or a
modification of the trust, by one of the following methods:
(1) Signing the trust instrument or the trust instrument as
modified, or signing a separate written acceptance.
(2) Knowingly exercising powers or performing duties under the
trust instrument or the trust instrument as modified, except as
provided in subdivision (b).
(b) In a case where there is an immediate risk of damage to the
trust property, the person named as trustee may act to preserve the
trust property without accepting the trust or a modification of the
trust, if within a reasonable time after acting the person delivers a
written rejection of the trust or the modification of the trust to
the settlor or, if the settlor is dead or incompetent, to a
beneficiary. This subdivision does not impose a duty on the person
named as trustee to act.
15601.
(a) A person named as trustee may in writing reject the
trust or a modification of the trust.
(b) If the person named as trustee does not accept the trust or a
modification of the trust by a method provided in subdivision (a) of
Section 15600 within a reasonable time after learning of being named
as trustee or of the modification, the person has rejected the trust
or the modification.
(c) A person named as trustee who rejects the trust or a
modification of the trust is not liable with respect to the rejected
trust or modification.
15602.
(a) A trustee is not required to give a bond to secure
performance of the trustee's duties, unless any of the following
circumstances occurs:
(1) A bond is required by the trust instrument.
(2) Notwithstanding a waiver of a bond in the trust instrument, a
bond is found by the court to be necessary to protect the interests
of beneficiaries or other persons having an interest in the trust.
(3) An individual who is not named as a trustee in the trust
instrument is appointed as a trustee by the court.
(b) Notwithstanding paragraphs (1) and (3) of subdivision (a), the
court may excuse a requirement of a bond, reduce or increase the
amount of a bond, release a surety, or permit the substitution of
another bond with the same or different sureties. The court may
not, however, excuse the requirement of a bond for an individual
described in paragraph (3) of subdivision (a), except under
compelling circumstances. For the purposes of this section, a
request by all the adult beneficiaries of a trust that bond be waived
for an individual described in paragraph (3) of subdivision (a) for
their trust is deemed to constitute a compelling circumstance.
(c) If a bond is required, it shall be filed or served and shall
be in the amount and with sureties and liabilities ordered by the
court.
(d) Except as otherwise provided in the trust instrument or
ordered by the court, the cost of the bond shall be charged against
the trust.
(e) A trust company may not be required to give a bond,
notwithstanding a contrary provision in the trust instrument.
15603.
On application by the trustee, the court clerk shall issue a
certificate that the trustee is a duly appointed and acting trustee
under the trust if the court file shows the incumbency of the
trustee.
