Can a Successor in an Irrevocable Trust Be Removed?

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By definition, irrevocable trusts cannot be modified, amended or revoked by the trust grantor. Many times an irrevocable trust grantor will name a successor trustee who does not meet the approval of the beneficiaries. It is possible to remove a successor trustee, but whether removal can occur depends on the language in the trust agreement, state law and whether all beneficiaries of the irrevocable trust agree that they want the successor trustee removed from office.

Trust Agreement

The first place to look and determine if removal of a successor trustee is possible is the trust agreement. Many lawyers that draft trust agreements are very aware that successor trustee appointments can have difficulty in later years and purposely place language in the trust agreement to allow irrevocable trust beneficiaries to remove a successor trustee. Any removal language in a trust agreement typically requires that all or a majority of the irrevocable trust beneficiaries agree to remove the successor trustee.

State Law

If the trust agreement is silent regarding the removal of a successor trustee, then a review of the state law that governs the trust is the next course of action for the beneficiaries. Many states have adopted trust law that allows beneficiaries to remove a successor trustee without court order as long as notice is provided to all irrevocable trust beneficiaries and none of the interested parties object to the removal.

Court Order

If the governing state law of the irrevocable trust does not contain successor trustee removal procedures, then the beneficiaries must hire a trust lawyer and petition the court to have the successor trustee removed. Historically, trust beneficiaries were required to prove some form of wrongdoing or improper action to have a trustee removed, but this is no longer the case. As long as all beneficiaries agree and a suitable trustee is available to serve, the courts typically allow the removal of the successor trustee without any problems.

Resignation

The easiest way to remove a successor trustee is for the beneficiaries to simply ask the successor trustee to resign. Corporate trustees are extremely reluctant to resign as trustee, but individual successor trustees tend to be more amenable to resigning from office rather than have a battle with the irrevocable trust beneficiaries. A court order may be required to name a successor trustee if there is no provision to name a new trustee in the trust agreement, but a resignation makes the process much simpler.

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