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How do I substitute a successor trustee for one or two listed in a trust

West Hills, CA |

My mother has been declared incompetent. Her trust indicates B of A has her successor trustee. If B of A can't or won't do it, the next successor trustee is 1st Interstate of California (no longer operating). How do I get myself appointed as replacement successor trustee so that I can manage my mom's affairs?

Attorney Answers 4

Posted

Mr. Lucas is correct. This is where a Durable Power of Attorney is useful. If your mother (while she had capacity) granted an agent the power to modify or revoke the trust they have the power necessary to appoint you as trustee. The authority to deal with trust property and to revoke or amend the trust is a fairly common power granted in a durable power of attorney. Find out if your mother granted any person such a power through a properly executed durable power of attorney.

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Mary Lynn Symons

Mary Lynn Symons

Posted

Please note that for for an agent under a durable power of attorney to be able to amend a trust BOTH of the following must be true: (a) the power of attorney must grant the agent the authority to amend the trust AND (b) the trust must allow an agent to amend the trust. If the trust doesn't allow an agent acting under a durable power the power to amend the trust then the agent does not have that power regardless of what the durable power of attorney provides. See Probate Code 15401(c).

Posted

Are there any other Estate Plan documents? For example, she could have a Durable Power of Attorney that appoints someone to amend/revoke Trusts, in which case the successor trustees could be amended. Absent some other document like that, then we have to look to the terms of the Trust itself. If it's B of A and Interstate CA, then there's not a lot to be done. If you have reason to believe she wasn't competent when the Trust was executed, that could also be a grounds. You should have a qualified Estate Planning attorney at least look over the Trust and other documents for you to see what the terms of those documents are and if there's any way to accomplish your goal.

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Posted

If the terms of trust or other estate planning documents do not provide a mechanism for selection of a successor trustee under the circumstances your only option is to petition the probate court for appointment.

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Mary Lynn Symons

Mary Lynn Symons

Posted

I agree with Mr. Daymude. Even when both the durable power of attorney authorizes the agent to amend the trust and the trust authorizes an agent to amend it (BOTH are required - see my comment above), there are often severe restrictions on the power to amend. As Mr. Daymude indicates. you need to look at the terms of the Trust. Generally, BofA will also have to decline to act (unless someone has the power to remove them). Please see an attorney to review the trust and discuss your options with you.

Michael Raymond Daymude

Michael Raymond Daymude

Posted

Excellent comment to my answer, Ms. Symons. I didn't emphasize the requirement that both documents allowed for the appointment or even consider that the nominated successor trustees had to decline to act, first.

Posted

If I recall correctly, First Interstate was bought by Wells Fargo. Wells Fargo would then be the successor. Both Wells and B of A would have to decline to serve. As stated, you would need to look to the provisions of the Trust to determine how to appoint a successor. If there are none, a Petition can be filed. You really should consult with an attorney in the Valley or the city for assistance. Your Petition would be filed in Downtown LA.

Also, as indicated, if there is a Person appointed as your mother's agent under a General Power of Attorney, depending on that document and the Trust, the agent may have authority to amend the trust and name someone.

Again, you really need to consult a Trust/Probate attorney.

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