If you believe that the Trustee of a trust is not performing to your expectations or that there is another person more suitable, you might consider removing the Trustee.
The first step is obtaining and reviewing the trust documents to identify the process (if any) specified in the trust for removing a trustee. This process is usually detailed in a section called “Trustee Provisions” or sometimes “Administrative Provisions.”
Common Ways to Remove a Trustee
Below are a few common ways to remove a trustee. Depending on the trust, the exact process may be different.
- Removal of the Trustee by the Trustmaker in a Separate Revocable Living Trust. The Trustmaker (Settlor) of a revocable living trust can remove a Trustee at any time, with or without cause, so long as the Trustmaker is not incapacitated (i.e., the Trustmaker is capable of making his or her own decisions).
- Removal of the Trustee by the Trustmakers in a Joint Revocable Living Trust. In a joint trust, the two Trustmakers usually must both agree to remove a trustee, unless one of the two Trustmakers is no longer living, in which case the living Trustmaker can act independently
- Voluntary Resignation of a Trustee: a Trustee can resign by following the notice provisions detailed in the trust. Typically, these notice provisions require issuing a written notice to the other Co-Trustees (if any), the Trustmaker (if living), and the adult beneficiaries of the Trust
- Removal of a Trustee Due to Incapacity: a Trustee who is incapacitated is no longer eligible to serve in that role. If the Trustee disputes the incapacity charge, the removal process would need to go before the court
- Court-ordered Removal of a Trustee: a beneficiary or other party with an interest in the trust may petition the court to remove a trustee for cause (i.e., good reason), which may include proof of embezzlement, breach of trust, incapacity, incompetence, or other gross negligence
How to Remove a Trustee by Court Order
Since the other ways to remove a trustee are relatively straightforward and non-contentious, most people researching how to remove a trustee are generally interested in how to remove a trustee through court order.
The exact process to remove a trustee through court order differs depending on the state, but the process tends to share a structure that looks substantially similar to the below:
- Petition. A beneficiary or interested party to the trust files a petition with the court. The petition must be filed in the local court that has jurisdiction over the trust and should include specific details demonstrating the cause to remove the trustee
- Notice. The petitioner provides written notice of the petition to the trustee, beneficiaries, and other parties who have an interest in the trust
- Discovery. Both sides may conduct a “discovery” process to gather evidence to support their case for or against the removal of the trustee. This may include gathering evidence from beneficiaries, witnesses, and other parties
- Hearing(s). The court holds one or more hearings to consider the petition and the evidence provided by both sides as to the historical performance of the trustee and/or the trustee’s ability to continue in the role
- Decision. A judge will make the final decision on whether the trustee is removed
Should You Petition to Remove a Trustee?
The process to remove a trustee through court order can be complex, time-consuming, and expensive. Before pursuing this route, make sure that you have expressed your concern directly with the trustee and exhausted all other options that may be available to you under the trust agreement.
You may wish to consult with an experienced estate planning attorney to review the process in your state, your particular case, and your likelihood of successfully removing the trustee. You can find an estate administration expert with Just In Case Estates.
After consulting an expert, it is not uncommon for concerned individuals new to trust administration to find that their frustrations lie less with the trustee and instead in the fact that trust administration, while often smoother than probate, can still be a lengthy process.
Even in scenarios in which gifts under a trust are to be made outright, it may take upwards of a year before all distributions can be made. You might consider one of three different strategies to get your inheritance faster.
