How to Change the Trustee of an Irrevocable Trust

The general definition of an irrevocable trust is that it cannot be modified or revoked by the person who creates it, otherwise known as the settlor or grantor. This is the essential feature of an irrevocable trust. There are some situations, however, in which the trustees or beneficiaries of an irrevocable trust can modify the trust as long as the change does not conflict with a material purpose of the trust as envisioned by the settlor. Such a modification can include changing the trustee. In many instances, such a change will involve petitioning a court, and state probate laws vary.

Things You'll Need

• Trust document

Instructions

1. Review the trust document for instructions. In most cases, the methods by which the trustee of an irrevocable trust can be changed will be determined by the nature of the trust and the terms of the document itself. Relevant language to look for includes a statement about which state's laws govern the trust, the designation or authorization of a trust protector or any explicit instructions about changing the trustee.

2. Obtain approval of all beneficiaries. One of the usual preconditions for modifying an irrevocable trust is to obtain the consent of all interested parties, including all beneficiaries. In some states, an agreement among the beneficiaries can be enough to change the trustee, so long as the purpose of the trust is not violated. Some states may interpret the trustee as an interested party, in which case he may be able to prevent this manner of change unless there is formal court intervention.

3. Request change from the trust protector. Many trusts do not appoint a trust protector, who acts as a supervisor of the trust. If a trust protector is appointed by the trust document, her powers are usually enumerated in the document. Among these powers is typically the ability to review the actions of the trustee and change the trustee if necessary.

4. Petition the probate court. If there is a compelling reason to change the trustee, such as gross misconduct or abandonment of trustee duties, a probate court with jurisdiction over the trust can be moved to order a change of trustee.

5. Obtain permission from the settlor, if he or she is alive. The Uniform Probate Code (Section 411), which has been adopted entirely by 16 states and in part by others, authorizes modification of the trust by the beneficiary if the settlor approves of the change. The settlor may also appoint an agent with the power to provide such consent.

Tips & Warnings

• Irrevocable trusts can be highly complex legal instruments, and changing the trustee is a serious action. Consulting an attorney is recommended.

References

• University of Nebraska-Lincoln College of Law: Trust Modification and Termination Under the Uniform Trust Code
• Calhoun County Courts (MI): Can beneficiaries change the terms of an irrevocable trust by agreement?
• Elder Law Answers: What Is a Trust Protector and When Might You Need One?

Resources

• Irrevocable Trust
• Change of Trustee
• California Probate Code