Is there a clear mechanism for succession when it comes to the Trustees?

A critical component to most living trusts is establishing who the successor Trustee is going to be.  Sometimes, it is very difficult for people to choose two or three successor trustees (I usually like my clients to choose at least two alternates in the event their first choice is unable to serve).  However, even if you know who your successor Trustees are going to be, you still need to outline a clear mechanism for succession in your living trust.  In other words, how will we know when it's time for the successor trustee to serve?  There are generally a handful of ways a successor trustee can step in and start handling your trust.

1) A common method is resignation.  In other words, let's say you are the trustee but you can no longer handle your own affairs.  You actually recognize that maybe it would be better if someone else handled your affairs.  In that case, you can resign as trustee, and your successor Trustee steps in and handles your trust.  The resignation can be accomplished by signing a formal resignation.

2) Death is also an easy way to establish succession.  All your successor would need is your death certificate.  Unfortunately, that can take weeks to get from the county, but it's a sure fire way to establish succession. 

3) The last common way to establish succession is to establish "incapacity."  Most trusts say that when a trustee becomes "incapacitated," the successors can step in and handle matters.  However, the trick is how the document defines "incapacity."  I have seen documents that call for two doctors' declarations under penalty of perjury, one of which must be the primary care physician.  Some call for three doctors.  Some say the beneficiaries can vote if someone is incapacitated.  Sometimes this is very difficult to establish, especially when doctors are reluctant to sign such declarations (and they are often reluctant to do so for fear of litigation).  In my living trusts, I usually require only one licensed physician's declaration to establish incapacity.  Of course, I always make sure my clients are ok with this.  It's much easier to handle things when only one doctor's declaration of incapacity is required.  If you've chosen people you trust, why make it difficult for them to help you when the time comes?

Robert Mansour is a lawyer in Santa Clarita, CA.  He handles wills, living trusts, and other estate planning matters for Santa Clarita and its communities of Valencia, Saugus, Canyon Country, Stevenson Ranch, Newhall, Castaic and beyond.  Call (661) 414-7100 for a consultation.