What are the difference between joint trustees and co-trustees of a revocable living trust before and after death of a trustee?

Asked over 2 years ago - San Diego, CA

Does a joint trustee have a right of survivorship as in joint tenancy?

Attorney answers (3)

  1. Mary Lynn Symons

    Contributor Level 13


    Lawyers agree

    Answered . Presumably the terms mean the same thing. Normally the reference is to co-trustees. Does the trust that you are referring to say that the two trustees act jointly? In that case, they would be co-trustees.

    Note that it is still possible that the document that you are referring to provides for something else and to be sure, you should have the document reviewed. If you are now administering a trust, you will find that it is much easier if you hire an attorney to assist you.

    A trustee does not have a right of survivorship as in joint tenancy. The terms of the trust dictate what happens uppon the death of the trustor/settlor/grantor. Is the trustee who has died also the trustor/settlor/grantor? Hopefully the trust also provides for a succession of trustees.

    Please see an attorney to assist you.

  2. Adam Durrel Woolsey

    Contributor Level 8


    Lawyers agree

    Answered . I agree with attorneys Symons and Frederick (above).

    The word "joint" within the revocable trust setting (similar to the guardian, conservatorship and POA nomination settings; See Cal. Prob. 2101) implies a unanimity requirement for decisionmaking not a right of survivorship. Specifically, when two or more trustees are nominated to act and they cannot agree, neither ... that's right... neither, has authority to act alone. The trust instrument determines the distribution of assets, not the trustee succession.

    When one trustee dies, where unanimity had been required under the trust, you should look back to the Trust instrument for specific direction on who is authorized to act and in what manner. The trust instrument will hopefully specify whether the sole remaining trustee was directed to act alone or with a successor co-trustee. If there is no successor nomination and it is not addressed in the instrument, you may need to file a Cal. Prob. 17200 Petition for instruction, especially if there are adverse interests.

    A unanimity requirement can cause deadlock and failure to act, to the detriment of the estate. In at least one unpublished decision, disgruntled trust beneficiaries successfully charged that the failure of "joint trustees" to act because of their inability to agree constituted a breach of their fiduciary duties. Fiduciary's are wise to obtain counsel to advise them of their duties.

    Do you want accurate, personalized, legal advice that you can rely on? You will have to hire an attorney, not ask... more
  3. James P. Frederick

    Contributor Level 20


    Lawyers agree

    Answered . I agree with Attorney Symons. It is difficult to adequately answer your questions without more facts or the ability to read and review the trust document in detail. The trust governs what happens before and after death. Usually, the trust grantor(s) would serve as trustee(s) during lifetime. In that case, there would obviously be a change in trustee(s) following the grantor's death. The responsibilities of the trustees may change or may be very similar, depending on the provisions of the trust agreement.

    James Frederick

    I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice... more

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