Consider providing your beneficiaries with the power to remove a trustee
To ensure that a trust operates as intended, it’s critical to appoint a trustee that you can count on to carry out your wishes. But to avoid protracted court battles in the event the trustee isn’t doing a good job, consider giving the trust beneficiaries the right to remove and replace the trustee.
What’s the role of a trustee?
A trustee is the person who has legal responsibility for administering a trust on behalf of the trust’s beneficiaries. Depending on the trust terms, this authority may be broad or limited.
Generally, trustees must meet fiduciary duties to the beneficiaries of the trust. They must manage the trust prudently and treat all beneficiaries fairly and impartially. This can be more difficult than it sounds because beneficiaries may have competing interests. The trustee must balance out their needs when making investment decisions.
The decision about naming a trustee is similar to the dilemma of choosing an executor. The responsibilities require great attention to detail, financial acumen and dedication. Because of the heavy reliance on investment expertise, choosing a professional over a family member or friend is often recommended. At the very least, make it clear to the trustee that he or she may — and should — rely on professionals as appropriate.
What’s considered “cause?”
If you don’t provide the trust’s beneficiaries the option to remove the trustee, their only recourse would be to petition a court to remove the trustee for cause. The definition of “cause” varies from state to state, but common grounds for removal include:
Fraud, mismanagement or other misconduct,
A conflict of interest with one or more beneficiaries,
Legal incapacity,
Poor health, or
Bankruptcy or insolvency if it would affect the trustee’s ability to manage the trust.
Not only is it time consuming and expensive to go to court, but most courts are hesitant to remove a trustee that was chosen by the trust’s creator. That’s why including a provision in the trust document that allows your beneficiaries to remove a trustee without cause if they’re dissatisfied with his or her performance may be a good idea. Alternatively, you may want to authorize your beneficiaries to remove a trustee under specific circumstances outlined in the trust document.
Other options
If you’re concerned about giving your beneficiaries too much power, you may want to include a list of successor trustees in the trust document. That way, if the beneficiaries end up removing a trustee, the next person on the list takes over automatically, rather than the beneficiaries choosing a successor.
Alternatively, or in addition, you could appoint a “trust protector” with the power to remove and replace trustees and make certain other decisions regarding management of the trust. Contact the FMD team for more information on the role a trustee plays.
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