My friend had an irrevocable special needs trust setup. She is the trustor/trustee and her daughter is the beneficiary. The lawyer did not appoint a successor trustee in the trust and my friends knowledge was minimal at the time she had the trust done. The verbiage says in the event no successor trustee has been appointed, a successor trustee shall be appointed by the court of a competent jurisdiction. It also states that the trustee may, from time to time amend this trust agreement to address changes in federal or state law, or other circumstances which may affect this trust and it's beneficiaries. Can we type up an amendment to the trust assigning a successor trustee as would be done for a revocable trust or does she have to have this done by a lawyer?
You should not do this on your own. Start with the attorney who drafted the trust.
The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
The terms of the trust agreement dictate how a successor trustee will be added. From what you have shared, it appears that it would have to be a court order. Generally the trustee is limited in how he/she/it may amend the trust. If a trust protector is in the trust, they often have the power to amend the trust.
If an amendment can be made to the trust, use a laywer to make sure it is done properly and that it is valid. The trustee needs to remember she/he/it is a fiduciary and must be very careful that everything is done properly in order to avoid liability.
I am happy to meet with the trustee and review the terms of the trust to give you an opinion during a free consultation. Feel free to contact me if interested.
Mr. John Skabelund is licensed to practice law in Arizona and his office is located in at Tempe Town Lake in Tempe, Arizona. You may contact Mr. Skabelund at (480) 344-0915 or through his website www.davismiles.com. In accordance with AVVO terms and conditions, this answer is provided for general informational purposes only and does not constitute legal advice nor should it be relied upon. Answering this question does not create an attorney-client relationship with Mr. Skabelund or Davis Miles McGuire Gardner, PLLC. Legal advice that you rely upon in making important decisions should only be obtained from direct communications with a lawyer licensed in your jurisdiction after there has been a full disclosure of all of the relevant facts. It is important to consult with an attorney because every state’s laws are unique, each situation is fact specific, and a full analysis of the facts and the laws of your state are required to provide legal advice. You should never provide information that you intend to be confidential or privileged on a forum such as this and you should never rely on information provided here as a substitute for legal advice. Any U.S. tax information provided above is not intended to be used, and may not be used, for the purpose of avoiding penalties imposed under the U.S. Internal Revenue Code or for promoting, marketing, or recommending any portion of this communication to any party.
Estate Planning Attorney
i depends on the language in the trust and it appears from the facts presented that a court order would be necessary.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.