can i change my trustee — *Changing your trustee may be critical to the success of your trust as circumstances change.*

A trust is a legal instrument that involves three roles: (1) the grantor, (2) the beneficiary, and (3) the trustee.

The trustee is generally the “manager” of the trust. If you’ve created a revocable trust, then you are most likely the trustee (so long as you choose to be), but there are certain situations where a person other than you is also serving as trustee.

For example, some older clients may have a child named as co-trustee to help manage the trust. Or, for irrevocable trusts (which are trusts that cannot be changed), you may have named a child or other trusted person to serve as trustee for asset protection purposes. Another example is a nominee trust (also known as a realty trust), in which you may have named another person to serve as trustee for privacy purposes.

In all of the above scenarios, it is common for the grantor (also known as the creator of the trust) to be able to remove and replace or update the trustee at any point in time so long as the grantor is mentally competent. However, you should check your trust to make sure that language in expressly written within it.

You should also make sure that you understand the logistics around the removal/replacement of the trustee. For example, if you want to change the trustee, do you need anyone else’s permission to do so? Do you need to notify the beneficiaries? How long does it take for the change to take effect?

If the trust is vague or doesn’t have that language in it, then you should look to the statutory language governing the trust (generally, the state in which the trust was drafted). For example, in Massachusetts, under chapter 203e, article 7, section 706 , it states situations where/how you could remove a trustee - but it requires court involvement to do so. So, if you don’t want the court to have to get involved, make sure your trust is explicit in not requiring court approval and clearly outlines how you can go about changing a trustee.

What if it’s an irrevocable trust? Can I change the trustee of an irrevocable trust?

For irrevocable trusts, similar to revocable trusts and realty trusts, you’ll want to check the trustee provisions of the trust document to review whether you (or another person or interested party) has the right to remove the trustee.

However, because irrevocable trusts are often drafted for asset protection purposes, there are often caveats, restrictions, or exceptions that you have to look out for.

For example, I’ve seen irrevocable trusts that may allow you to change the trustee, but only if you are able to appoint a new trustee that fits a certain criteria. This criteria might be that the new trustee has to be an independent trustee, a disinterested trustee, or a professional / corporate trustee.

In such scenario, it may go on further to explain what it means by “corporate trustee”, “disinterested trustee”, or “independent trustee“ - but if in doubt and not clearly stated in the trust, you can once again look to statutory law (like the Massachusetts uniform trust code) to make sure you are properly following the terms of the trust.

A word of caution: I’ve seen situations where a CPA or other professional has been named as trustee of the trust and the only way to replace him/her is with a corporate trustee. Since corporate trustees are often expensive and limited, you generally want to draft your trust to include broader language to increase flexibility / your trustee options (otherwise, you could inadvertently cause unnecessary administrative problems that your beneficiaries will have to try and fix down the road).

For that reason, many attorneys will draft the trust document to require an “independent trustee” or “disinterested trustee” rather than a “corporate trustee” depending on the nature of the trust and also depending on who is actually changing the trustee.

In other words, if it’s a beneficiary that’s trying to change the trustee and he/she has a substance abuse issue or gambling issue, then you’ll want to be much more strict in whether and who that person can appoint as trustee, whereas you may give yourself (as grantor) broader options as to who you could change the trustee to if such need arises.

When and why would I want to change my Trustee?

There are a few scenarios / urgent reasons to consider updating your trust to change your trustee or successor trustees:

Divorce or remarriage. Changing your trustee quickly after a change in marital status, can avoid future conflicts or uncomfortable situations for all of the parties involved.
Child coming of age / child graduating college. Many clients will draft the first version of their revocable trusts while their children are still minors. For that reason, they may have temporarily named a family member or close friend to serve as their successor trustee. However, if your child is now an adult (and acts like one), you may decide it’s time to update the trust to name your child as the successor trustee.
Trustee’s incapacity or change of circumstances. If your trustee is no longer mentally competent (e.g., has been diagnosed with Alzheimer’s) or if you simply feel they are no longer up to the task, then you’ll want to be proactive in appointing a successor trustee.

Can you review my trust and tell me my options for changing my trustee?

Yes, if the attorney who drafted your trust is no longer available to answer your questions, I’d be happy to look over your trust to help you determine whether and how you can change your trustee.