I have never seen a trust drafted by another lawyer that attempted to provide guidance to a successor trustee but I have seem many successor trustees operating in the complete dark for years. Often the result is the failure to file trust returns but worse outcomes do occur, which proper guidance might have avoided. Many people simply don’t want to seek advice. Is that simply the successor trustee’s problem or did the client/drafting attorney/trust assume too much of the successor trustee?
There seems to me to be an easy solution to this problem. When you anticipate that a successor trustee might not be the best choice but your client insists on naming a family member or friend as trustee, include a requirement that the successor trustee must seek and retain counsel to advise them as to the duties and responsibilities of a trustee. The provision can require compliance before the successor powers are effective or could be precatory in nature. Compensation could also be withheld if the successor did not comply with a mandatory provisions.
Here is a sample precatory provision I sometimes use.
Before a successor Trustee, other than the Settlor’s spouse or an Independent Trustee, assumes the role of a Trustee or Co-Trustee under this Trust, but in any event within ninety (90) days of his or her acceptance of Trusteeship, said successor shall provide the qualified beneficiaries (or a legal representative thereof) of the Trust or any then serving Trustee with a written statement from a practicing attorney stating that:
I, _________________, an attorney actively practicing in the State of ________________, have met with and/or spoken with (Name of Successor Trustee) for a reasonable amount of time and in doing so have generally advised (Name of Successor Trustee) of the duties imposed on a Trustee under Title 18-B M.R.S.A. 801 et. seq., of the Maine Uniform Trust Code (or its successor provision) (including but not limited to the duty of loyalty, the prohibition against self-dealing, the duty of impartiality, and the duty with respect to prudent investment and management of trust assets). I have reviewed the terms of this trust with said (Name of Successor Trustee) and in doing so have advised him/her of who the beneficiaries are and of his/her duties and responsibilities thereto under said trust. I have also provided said (Name of Successor Trustee) with the attached memorandum for his/her future guidance in said capacity, which generally reviews the powers, duties and responsibilities of a Trustee in the State of Maine or a copy of relevant provisions of the Maine Uniform Trust Code that set forth the powers, duties and responsibilities of a Trustee.
The legal costs so incurred shall be chargeable to the Trust. Notwithstanding the failure of any successor Trustee to deliver such a statement as required, any actions taken by said successor shall have the same power and effect as if said successor had delivered such a statement as required but said successor shall not be entitled to compensation until he or she has complied with this provision, albeit such compliance may be achieved after the ninety (90) day period stated hereinabove.