Appointment of Successor Trustee

Summary

This template is a standalone appointment of a successor trustee for a revocable or irrevocable trust. It is non-jurisdictional and may be modified for a particular state. This template includes practical guidance, drafting notes, and an alternate and optional clause. While most trust instruments nominate one or more successor trustees or successor co-trustees, the designated persons or entities may not be able or willing to serve. Therefore, it may be necessary or appropriate to nominate one or more successor trustees or successor co-trustees of a revocable or irrevocable trust. Typically, the trust instrument reserves this power to the settlor, but there may be authorized third parties, such as the settlor's spouse, last acting trustee, or beneficiaries, who may also have the power to appoint a successor trustee or successor co-trustees under certain circumstances set forth in the trust instrument. The settlor or other authorized third party or third parties may use this template to appoint a successor trustee. Trusts are generally governed by state law. However, many states have adopted some version of the Uniform Trust Code (UTC), a uniform act promulgated by the Uniform Law Commission to provide uniformity to the law of trusts throughout the United States. Thus, this template's summary and drafting notes refer to the UTC. A practitioner should refer to the trust laws in the applicable jurisdiction before drafting an appointment of successor trustee for a client. If the trust continues after the settlor's incapacitation or death, the trust instrument should authorize third parties, such as the settlor's spouse, the last acting trustee, or the beneficiaries of the trust, the power to appoint one or more successor trustees or successor co-trustees. Further, the trust instrument should provide the procedure for filling the vacant trusteeship. Vacancy in the trusteeship occurs due to one of the following reasons: • The designee is not willing to serve. • The designee cannot be identified or does not exist. • The trustee resigned. • The trustee is disqualified or removed. • The trustee died. • A guardian or conservator is appointed for the trustee. Unif. Tr. Code § 704(a). If the trust instrument does not offer a viable means of filling a vacancy in the office of trustee and no designee in the instrument is able or willing to accept appointment, the UTC authorizes qualified beneficiaries to appoint a trustee by unanimous decision. Unif. Tr. Code § 704(c)(2). A qualified beneficiary under the UTC is a beneficiary who is entitled to or a permissible distributee of current or future distributions of trust income or principal. Unif. Tr. Code § 103(13). Check your state's law on this issue because some states require only a majority decision of the beneficiaries (e.g., see 760 ILCS 3/704(c)). Barring such agreement, it would be necessary to petition the court to obtain an order appointing a successor trustee or successor co-trustees. Unif. Tr. Code § 704(c)(3). For more information on trusts in general, see Characteristics and Uses of Trusts and Requirements and Restrictions on Trust Purposes and Administration. For videos on trusts, see Estate Planning with Trusts: What Is a Trust? Video, Estate Planning with Trusts: Drafting Fundamentals Video, and Estate Planning with Trusts: Trust Administration Video. For related templates, see Trusteeship Acceptance, Trusteeship Declination, and Trustee Resignation.