Can a Successor Trustee Change or Amend a Trust?

Successor trustees often want to know if they can change or amend a trust after they take over its management. Read on to learn more. 

Generally, a successor trustee cannot change or amend a trust. Most trusts are initially managed by their creator or original trustee, while they are still alive and competent. But after their passing, a successor trustee must step in to take legal title to assets and administer the trust according to its terms. Many successor trustees are spouses or adult children of the person who made the trust, and they often find themselves embroiled in familial conflicts about who gets what from the estate, and when and how they get it.  As trust lawyers, one of the most frequently asked questions we get is whether successor trustees can change or amend a trust. We discuss this issue in more detail below. 

 

Can a successor trustee change a trust?

Generally, no. Most living or revocable trusts become irrevocable upon the death of the trust’s maker or makers. This means that the trust cannot be altered in any way once the successor trustee takes over management of it. The successor trustee’s primary job is to administer the trust according to the explicit and implied wishes of the original trustee. A successor trustee may not modify or add or remove beneficiaries from an irrevocable trust. They must also never give the impression that they have the power to do so, especially to force beneficiaries into signing releases of trustee liability in return for distributions, for example. A successor trustee essentially works for the beneficiaries, and has a duty to carry out trust administration in a manner consistent with its stated provisions.

 

Can a successor trustee amend a trust?

The successor trustee cannot amend an irrevocable trust themselves, but they can potentially have any amendments made by the original trustee voided if they were the product of undue influence, fraud, coercion, or duress. This can have the effect of reverting the trust back to its previous version and terms. 

 

Can a surviving spouse change or amend a trust?

Sometimes. Sometimes a trust will give a surviving spouse rights to change a trust after the first spouse dies, but this is uncommon.  Similarly, a trust may give a surviving spouse or other heir a general or limited power of appointment. This means that they may be able to remove or replace beneficiaries if the trust expressly allows them to. We often handle cases where a stepparent outlives a blood parent as a co-trustee, and then tries to disinherit their beneficiary stepchildren. Depending on the facts of the case and the language of the trust, this may or may not be allowed. Consulting a trust litigation attorney is crucial in knowing and enforcing your rights in these cases.

 

Can a successor trustee remove a beneficiary?

Generally speaking, no. Successor trustees cannot eliminate a beneficiary, reduce a beneficiary’s share, or refuse to make distributions to a beneficiary unless the trust document specifically grants them discretionary powers to do so, or makes a beneficiary’s inheritance conditional upon meeting certain requirements, the failure to comply with which give the trustee the authority to effectively disinherit them. 

 

Can a successor trustee remove a co-trustee?

Most of the time, trust creators name one successor trustee, just to make things simpler and avoid unnecessary disputes. But sometimes, the original trustee will name multiple successor trustees who are meant to share authority over and responsibility for the administration of a trust. When this is the case, a successor trustee can only remove a co-trustee if they have harmed the trust or engaged in misconduct, negligence, or a breach of fiduciary duty. Trustee breaches are more common than you might think, however, so a successor with a good case may very well be able to have a co-trustee removed. If the co-trustee is also a beneficiary, they may be relieved of their trustee authority, but less likely they will be disinherited. 

 

Can a successor trustee take over if the original trustee is still alive?

Not unless the original trustee has become mentally incapacitated or voluntarily relinquishes their position. Successor trustees do not have any power or authority over a living or revocable trust while the original trustee is still alive and well. But oftentimes, successor trustees are concerned about the original trustee’s continued ability to manage the trust due to aging, declining health, or neurological problems. This is why many trusts and/or durable powers of attorney contain provisions for deciding whether the maker is still capable of handling their own affairs. Oftentimes, the document will appoint a trusted and unbiased party (this does not have to be a doctor) to judge the original trustee’s mental fitness or lack thereof, and based on that assessment, a successor trustee may be authorized to take over management of the trust. 

 

Can a successor trustee change beneficiary distributions?

No. Unless a successor trustee is granted specific powers to do so, they cannot arbitrarily or capriciously increase or decrease a beneficiary’s distribution in an irrevocable trust. But successor trustees usually do have broad discretion in terms of what, when and how they pay beneficiaries, and trusts usually don’t have a specific deadline for when this must be done.This is to give the successor trustee sufficient time to settle the affairs of the estate, and/or to sell securities or property under the most favorable conditions. But we have seen many cases where sibling rivalry or familial bad blood results in trust distributions being withheld out of spite or apathy, under the guise of “things just taking time.” If a successor trustee is not offering a valid, documented, and business-like reason for withholding a trust distribution, the stark reality is that trust beneficiaries may have to take legal action to get what they’re owed.  

 

What if a successor trustee pressured the original trustee into making changes?

If there is sufficient evidence or testimony to suggest that a successor trustee took advantage of an original trustee’s weakened or debilitated state to force them into making self-serving amendments to the trust, heirs may be able to sue the successor trustee for undue influence — especially when there is documentation of conditions like Alzheimer’s or dementia, or when the original trustee was dependent upon the successor trustee for caregiving services. A successful claim of undue influence may void any disadvantageous changes or amendments made to a trust. 

 

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About RMO Lawyers

RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com