How many days notice do I need to give if I resign as successor trustee?
The trust names the person to be appointed if trustee resigns, fails to serve or is unable or unwilling to serve. However, there are no further instructions on procedure to be followed.
You need to consult the terms of the trust to determine if you can resign and the procedure you must follow. Otherwise, you need adult beneficiary consent or court order. The applicable provision follows:
Probate Code section 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.
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Estate Planning Attorney
Some trusts do not explicitly provide a resignation protocol but, in my experience, having an attorney prepare a basic resignation of trustee document that is signed by the currently acting trustee is sufficient. In these cases, I will typically also advise that another document be prepared for the new trustee to sign in order to formally accept the appointment. The trust should be reviewed thoroughly by an estate planning attorney to see what your options are.