How do you replace a Trustee? The answer depends on the language in your Trust document. Most trusts have a specific section that outlines the procedure in which a Trustee can be replaced.
Some Trustees step down willingly. In certain instances, you can have a Trustee sign a document called a Resignation by Trustee, and have the new Trustee sign a document called an Appointment or Acceptance of Trustee. This is the easiest method. An attorney who handles estate planning can typically draft these documents for you. Most Trusts name a specific person or entity to take over as the Successor Trustee or Second Successor Trustee if the original Trustee is unwilling or unable to act.
What happens if the Trustee won’t willingly step down? You may need to go to court. In order to forcibly remove a Trustee, you may need to file a lawsuit in probate court to suspend or remove the Trustee.
In order for you to succeed in forcibly removing the Trustee by court order you have to gather and submit documentary evidence and testimony to prove to the judge that the Trustee has committed some Breach of Trust, such as Trustee theft (misappropriation), self-dealing, unreasonably delaying the distribution of assets, refusing to follow the terms of the trust, or failing to perform their fiduciary duties as Trustee in some way. Once the lawsuit is filed, you can subpoena financial records if necessary.
If you attempt to remove a Trustee by court order, prepare yourself for a legal battle. The Trustee will likely hire an attorney and object to the lawsuit. The average lawsuit takes 18 months to 2 years to resolve, sometimes longer. The Trustee may attempt to use trust assets to fund the lawsuit. Unfortunately, you will have to bear your own attorneys’ fees if you file a lawsuit against the Trustee. You may be able to find an attorney to take your case on a contingency fee basis, under which the attorneys’ fees come out of the amount you receive from the trust or estate at the end of the case.
Replacing a Trustee can be easy if the Trustee agrees to step down. If the Trustee refuses to step down, you will need to seek the assistance of the court. If you believe you will need to file a lawsuit to replace your Trustee, contact an attorney who specializes in trust and estate litigation for a consultation.