Legal Question in Wills and Trusts in New York
The Trustee for a testamentary irrevocable trust seeks to resign because he is in ill health. The Trust Agreement provides that the Trustee may resign by giving written signed and acknowledged notice to the Beneficiary. The Trust Agreement also provides that, if the Trustee "is unable to or unwilling to serve as Trustee" a specified individual will serve as the Successor Trustee. Is the Successor Trustee able to immediately assume the powers of Trustee upon the resignation of the existing Trustee? Or is some action required by the Surrogate's Court to appoint the Successor Trustee, even though they are already identified in the Trust Agreement? The Trust Agreement provides that an application must be made to the Surrogate's Court to appoint a Successor Trustee who is *not* named in the Trust Agreement, which makes it seem like the Successor Trustee who *is* named in the Agreement should be able to take over purely as a function of the Agreement. If the Surrogate's Court must act to appoint the Successor Trustee who is already named in the Trust Agreement, what sort of petition to the court is required?
1 Answer from Attorneys
Those words about "if the trustee is unwilling or unable to serve . . . then the successor becomes trustee" are intended to apply at the time of the death of the testator, when whomever is probating the will has to write on the Petition for Probate who is to receive Letters of Trusteeship for the testamentary trust setup in the decedent's Will. But you're absolutely right all of these words are unclear and could be worded better. So yes if someone has already received Letters of Trusteeship, then a successor is going to need their own authority from the Surrogate's Court.
Good luck.
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