do-i-have-to-serve-as-successor-trustee

4 minute read

What If I am Asked to Serve as a Successor Trustee?

If you are asked to serve as a Successor Trustee, do you have to say yes? Learn the ins and outs of Successor Trustee nomination in this guide.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

Imagine being approached with the question, "Would you be willing to serve as a Successor Trustee?"

This might seem like a daunting proposition, especially if you're unfamiliar with the role and what it entails. Before you commit, it's a good idea to inform yourself first.

Are you obligated to say "yes" if asked to take on this role? What are the legal implications and duties attached to it?

We will unpack these questions and more in the following guide, clarifying your rights and the rules surrounding the Successor Trustee's position. By the end of this guide, you'll be better equipped to make an informed decision.

Do I have to serve as Successor Trustee?

In the simplest terms, the answer is no: you are not obligated to serve as a Successor Trustee if you don't want to or don't feel qualified.

Being nominated as a Successor Trustee is not a binding contract.  It's an invitation and request to step into an important role, but only if you choose to accept it. Even if you are named as a Successor Trustee without your knowledge, you can always refuse the role after the fact.

Also, know that you are not expected to respond immediately upon being nominated. You can take your time to understand the role and its responsibilities, as well as assess your comfort level with the tasks at hand. It is your right to decline the request if you feel that the scope of responsibilities is beyond your capacity (whether it be in terms of skill, time, or effort.)

Here's what we recommend doing to gather information upon being nominated for this role:

  1. Review the Trust documents

  2. Learn about the Trust assets

  3. Gain an understanding of your responsibilities

  4. Consult a legal professional if necessary

Only after careful thought should you make your decision.

What happens if I say yes to serving as Successor Trustee

If you decide to say "yes" and accept the nomination to serve as a Successor Trustee, you may wonder when your responsibilities will begin.

Typically, your role as a Successor Trustee won't begin until the original Trustee passes away or becomes incapacitated. If the Trust in question is a Living Trust, then the Trustor typically appoints themself as the Trustee during their lifetime. If the Trust is an Irrevocable Trust that only goes into effect upon the Trustor's death, then the primary Trustee may be another individual. Regardless, it becomes your turn to serve when the original or primary Trustee is no longer able to serve.

At this point, the legal process begins, and the baton of responsibility is passed on to you. However, it may be beneficial to familiarize yourself with the intricacies of the Trust and its assets ahead of time, as we suggested earlier.

Your responsibilities can include (but are not limited to):

  • Managing the Trust's assets

  • Ensuring the Trust's terms are met

  • Acting in the best interests of the Beneficiaries

  • Distributing assets upon the Trust's termination

It's important to note that even though you accept the role of Successor Trustee, you're not necessarily obligated to stay in this position indefinitely. If at any point you feel overwhelmed or unable to fulfill your duties, you have the right to resign.

For more information, you can visit our Learn Center to learn about the specifics of the Successor Trustee role and responsibilities. Remember, the role of a Successor Trustee is significant; we strongly recommend that you consider all aspects thoroughly before making your decision.

What happens if I say no to serving as Successor Trustee

If you choose to decline the role of Successor Trustee, it's not a decision that should cause you undue concern.

The terms of the Trust typically outline a succession plan for such an event. Often, the Trust document will name a series of individuals who could potentially serve as Trustees. If you choose to decline the role, the next person in line will be approached and offered the opportunity.

However, if there is no successor mentioned after you, or if all named alternates also decline, the court system will step in to appoint a Trustee. This Trustee could be a neutral third party, such as a trust company or a professional fiduciary. The court-appointed Successor Trustee will still have the duty to act in the best interests of the Beneficiaries.

Regardless of the path you choose, communication is key. It's recommended that you inform all the relevant parties involved about your decision promptly. This allows for a smoother transition and allows your replacement to familiarize themselves with their new role and responsibilities.

From the perspective of the Trustor, this highlights the importance of naming alternate Successor Trustees in the case that the desired individual(s) are not able to serve. Further, it is recommended to have conversations with your named Trustee and alternates to ensure that they are willing to serve and understand the scope of their responsibilities. That way, it minimizes the chances that a court-appointed Trustee will have to step in.

What to consider if you are asked to serve as a Successor Trustee 

Before saying "yes" to serving as a Successor Trustee, there are a few crucial elements you should take into account:

  • Consider your ability to manage the time commitments required for the role. Serving as a Successor Trustee often involves a considerable amount of work, which may include managing the Trust's assets, handling accounting tasks, and dealing with potential legal issues. Thus, a clear understanding and evaluation of your availability and skill set to handle such tasks is essential.

  • Assess your relationship with the Beneficiaries. As a Successor Trustee, you'll be in a position of great responsibility and trust, so it's critical to have a good rapport with the Trust Beneficiaries. Consider whether you can handle potential disagreements or disputes that could potentially arise during the execution of the Trust.

  • Remember to reflect on the emotional toll this role may take, particularly if you're close to the Trustor. Taking on this role requires a level of emotional resilience, especially when dealing with matters of estate and inheritance.

To help you better understand the responsibilities that come with this role, we invite you to check out our Successor Trustee Step-by-Step Checklist. It provides a comprehensive guide to the tasks you'll be expected to fulfill as a Successor Trustee. Furthermore, feel free to explore our other articles on related topics to gain a richer understanding of this significant role.

Appoint your Successor Trustee with the help of Trust & Will

There is no obligation to accept a nomination as a Successor Trustee. The decision should be made after careful consideration of several factors, including your ability to handle the time commitments and responsibilities, your relationship with the Beneficiaries, and your emotional resilience in managing sensitive matters of estate administration. Empowered with this knowledge, you should feel better equipped to make an informed decision about whether to accept the role of a Successor Trustee. It's a significant responsibility, and you have the right to prioritize yourself before committing to such a role.

When it comes to crafting your own Trust, Trust & Will is here to help ensure that your estate wishes are represented accurately. Our online platform makes the process simple, and it can all be done from the comfort of your home. If and when needed, our support team is ready to provide guidance 24/7 so that you feel knowledgeable each step of the way. From specifying the allocation of your assets to choosing the appropriate Successor Trustee, we're here to help make this process clear and straightforward. To get started, visit our Trust page which provides an overview of the process.

Is there a question here we didn’t answer? Reach out to us today or Chat with a live member support representative!

Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.

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