Legal Question in Wills and Trusts in California
Trustee Incompetency
Background: An Estate Trust for a husband and wife drawn under California law for the benefit of the three adult children. The husband and wife cross list each other as Trustee upon their individual death, and lists two different banks as Trustee upon the death of the last survivor. Should the banks refuse or be unable to serve, the three children are listed, with no provisions for decision making. The Trust also contains a springing forth Nomination of Conservatorship naming one of the children as Conservator of finance and body in the event of incapacity of the last survivor at time of death first death. The father dies, and the child with the Nomination immediately sues the Mother claiming that the 77 year old is incompetent and can not serve as Trustee as named in the Trust.
#1 If the mother is found incompetent, child with the Nomination of Conservatorship, automatically become Trustee over the Trust, or only over any Estate assets not listed in the Trust or do the three children become Trustees even though the Mother has not died?
#2 With no dispute resolution provisions, is decision making among the three beneficiary children by unnamious concent or my majority vots?
1 Answer from Attorneys
Re: Trustee Incompetency
In your fact pattern you have already stated that the one child becomes trustee if it is shown the mother is incapacitied; the Will is separate but only controls what assets are not already included in some other document or organization. The instructions in the Trust document do not control the Will. Why would all three children become trustees when the trust document designates only one? The trust document determines how many beneficiaries are counted for voting purposes.
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