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Garden City, NY Estate Planning & Complex Litigation Blog

Friday, February 1, 2019

Removing a Trustee

Trustees are responsible for administering a trust for the benefit of the beneficiaries. In some instances, multiple trustees may administer a trust as co-trustees. Occasionally, issues arise causing the beneficiaries of a trust or the co-trustees to pursue removal of a trustee. These issues could be general unhappiness with trust accounting or failure of the trustee or co-trustee to provide information when requested. In short, the grantor (creator) of the trust, co-trustees, the trust beneficiaries,  and the  probate court have the ability to remove a trustee

Reasons a Trustee Can Be Removed

The reasons for removal of a trustee depend upon the trust documents and applicable state law. Generally, a trustee can be removed for:

  • Incapacity – Trustees may be removed if they become incapacitated, whether due to medical issues or self-inflicted incapacity due to drug and alcohol abuse.
  • Violating the terms of the trust – Trustees may be removed if they violate the terms of the trust, such as not consulting with a co-trustee in a decision.
  • Failure to account or report as required – Trustees have an obligation to account for trust activity and report as required by the beneficiaries. Failure to accurately report the requested information is grounds for removal.
  • Self-dealing – Trustees owe beneficiaries fiduciary duties which require them to always act in the best interest of the trust and the beneficiary. Selling trust property to one’s self at a discount constitutes self-dealing and is grounds for removal.
  • Theft of trust property – Due to the fiduciary duties described above, theft of trust property is a violation of those fiduciary duties and is grounds for removal.

How do You Remove a Trustee?

In most trusts, the trust documents set out the process for removing a trustee. However, even when the trust document does not set out a process for removal, the trustee may still be removed by petitioning the state probate court. For example, the trust documents may set out that a trustee can be removed and replaced by the unanimous vote of the beneficiaries. In another example, the trust documents may require the beneficiaries to petition the court to determine the matter.

In situations where the trust mandates  court intervention, , or  the trust documents are silent regarding the removal of a trustee, then a party with an interest in the trust may petition the probate court to remove the trustee. If the court finds that the trustee has breached the trust agreement or  his or her duties to the trust or beneficiaries, or is unfit  to serve as the trustee, then the judge may order the removal of the trustee.

 


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Lawrence M. Gordon, Attorney at Law, P.C. has offices in Garden City, NY and assists clients throughout Long Island, including: the north shore of Long Island, The Town Of Oyster Bay, The Town Of North Hempstead, The Town Of Hempstead, The Town Of Huntington, Nassau & Suffolk Counties & throughout the Five Boroughs of The City Of New York.



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