Irrevocable trusts do not have the flexibility of revocable trusts. The grantor, who is also known as the trust creator or settlor, cannot unilaterally change the trustee. The beneficiaries must agree to the change. If the grantor has died, the beneficiaries can band together to change the trustee. In either case, the trustee can be changed as long as the change does not alter or conflict with the original terms and intent of the trust grantor.
Review the trust document to see if there is a provision that allows an appointed trustee to be changed. You are looking for permission under the trust terms to change the trustee and instructions on how to make the change.
Obtain written permission from each named beneficiary, the current trustee and the grantor to change the trustee. If the grantor is deceased, the beneficiaries must agree to change the trustee. Some states only require that all the parties consent to the change for it to be effective. Other states mandate that a motion be filed with the court and an order signed before the trustee can be changed. Consult the state statutes governing the trust to find out how to proceed.
Check the original trust to see if a trust protector was appointed. As the name implies, a trust protector acts to preserve the original intent and purpose of the trust. Some irrevocable trusts give the trust protector the power to change the trustee unilaterally. The beneficiaries must contact the trust protector about approving a trustee change if a protector has been appointed for their trust.
Draft a trust amendment to formalize the change. The amendment must specifically refer to the paragraph that authorizes the trust to be changed. Keep the same paragraph numbering as the original trust. For example, if the trustees are named in Article III, the amendment must list the new trustee in Article III. If there are successor or alternate trustees named in the original trust, recite the names exactly as they are stated. Make the written consents signed by the beneficiaries, current trustee and grantor, if living, part of the amendment.
Arrange to have the amendment signed by the grantor, if living, and the new trustee. Consult the governing state statutes to see how many witnesses are required at the signing. Have a notary public attend to attest to the identity of the parties. Keep the amendment with the original trust in a safe deposit box or personal safe.
Items you will need
- Original irrevocable trust document
- Consider appointing a professional trust company as trustee to help eliminate some of the problems inherent with appointing individuals as trustee.
- Be prepared to go to court if the beneficiaries will not consent to a trustee change or if there is a disagreement about who should be appointed.
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