Successor Trustee Duties

What a person named to take over a living trust after the creator dies or becomes incapacitated must do, the duties the law imposes, and when a trustee can be personally liable.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of Trusts law firms.

What it means

Most revocable living trusts name the person who created the trust as the first trustee and a successor trustee to take over when that person dies or can no longer manage their affairs. The successor trustee then holds legal title to the trust's assets and must manage and distribute them under the terms of the trust document, usually without going through probate court. Accepting the role is voluntary; a named successor can decline, and a serving trustee can usually resign under the trust's terms or state law.

A trustee is a fiduciary, and the law imposes specific duties. The duty of loyalty requires administering the trust solely in the beneficiaries' interests: no self-dealing, no buying trust property, no mixing trust money with the trustee's own. The duty of prudence requires reasonable care in managing and investing assets, judged by the prudent investor standard. The trustee must treat beneficiaries impartially, keep accurate records, and keep beneficiaries reasonably informed, including notice that the trust has become irrevocable and, on request, a copy of the relevant terms and periodic accountings. A trustee is entitled to reasonable compensation and to reimbursement of proper expenses, and can ask a court for instructions when the document is unclear.

The practical work after a death usually includes obtaining death certificates, giving banks and brokers a certification of trust rather than the whole document, getting a tax identification number for the now-irrevocable trust, listing and valuing the assets, paying valid debts, expenses and taxes (including the decedent's final income tax return and the trust's own fiduciary returns), and then distributing what remains as the trust directs. A trustee who breaches a duty can be removed and held personally liable for the resulting loss, which is why many trustees hire a lawyer and an accountant for the administration and pay them from the trust.

Where this comes from

When people hire a lawyer for this

A trust administration or estate planning lawyer can explain what the document requires, what notices state law demands and by when, and how to handle taxes, creditor claims and difficult beneficiaries; the fee is normally a proper trust expense. Get help before distributing anything if beneficiaries disagree, if the trust holds a business or real estate, if an estate tax return may be due, or if you are also a beneficiary and could be accused of favoring yourself. Beneficiaries who believe a trustee is not doing the job can also consult a lawyer about an accounting or removal.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

Find Trusts law firms in your state

Choose your state to see Trusts law firms in the city where we list the most; your city may be under “other cities”, A to Z. A state marked “Estate Planning” has no Trusts listing yet and opens the broader page.

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Related terms

Entries on the same subject:

• Revocable Living TrustA container you put property into during life so it can pass at death without a court - useful, oversold, and useless if left unfunded.
• Special Needs TrustA trust that holds money for a person with a disability without disqualifying them from SSI and Medicaid, the difference between first-party and third-party trusts, and the ABLE account alternative.

Other entries in the same area of law, each written from the same primary sources.

• Beneficiary Designation (Payable-on-Death)The single line on an account form that overrides the will - and the commonest reason an estate plan does not do what the family expected.
• Contesting a WillThe narrow legal grounds for setting a will aside - and why "it is not fair" is not one of them.
• Elder LawThe practice area that brings together the legal problems of aging: paying for long-term care, Medicaid eligibility, planning for incapacity, guardianship, and protection from abuse and financial exploitation.
• Estate Planning (What an Estate Plan Is Made Of)The set of documents and arrangements that decide who manages your affairs if you cannot, who inherits what, and how, with the least cost, delay and tax.
• Executor (Personal Representative)The person a court authorizes to wind up an estate - a job with real duties, real personal exposure, and a right to be paid.
• Guardianship and ConservatorshipA court transferring legal decision-making for an adult who cannot make decisions themselves - the most restrictive option, and often not the necessary one.
• Intestate SuccessionThe statutory order in which a person's property passes when they die without a valid will - a default set by the state, not by the family.
• Last Will and TestamentThe document that says who inherits what - and, just as importantly, the many things it does not control.
• Power of AttorneyA document authorizing someone to act on another person's behalf in financial or legal matters.
• ProbateThe court process that settles a deceased person's estate: validating any will, paying debts, and transferring what remains.
• Small Estate AffidavitThe sworn form that lets a family collect a modest estate without opening a probate case at all.
• Spousal Elective ShareThe statutory right of a surviving spouse to claim a portion of the estate regardless of what the will says.

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