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How Does One Add a Co Trustee to a Trust?

Attorney Thomas B. Burton answers the following question: "How Does One Add a Co Trustee to a Trust?"

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Hello, I'm Attorney Thomas Burton and welcome back to our popular question and Answer Series!

Today's question comes from Milwaukee, Wisconsin and the writer asked the following:

"How does one add a co-trustee to a trust? My mother appointed my sister to be executor of her trust but due to elder abuse issues she wants my brother as co-executor or trustee. Is this a simple procedure? Does it require a lawyer? "

Okay, great question!

First off, I just want to clarify some terms, An Executor would be with a will, what we call a Personal Representative in Wisconsin. So when you're saying appointed the sister as executor, I think you mean as trustee of the trust, if there is a trust but due to elder abuse issues she wants my brother as co-executor or trustee. So there you said co-trustee, I think what you're saying is she wants to appoint a co-trustee or substitute, a different trustee and the answer is, yes, you can do this if your mother's still alive, she, inside the trust should be a process. If it's a Revocable Living Trust which is the most common type of estate planning, probate avoidance trust, she retains the right to revoke or change the trust. She can execute an amendment naming a new trustee and usually, right in the trust, there's a process that says, what the settler needs to do to appoint a new trustee. Usually, it's executing an appointment in writing and often, you would sign it in front of a notary, just like you did the original trust and giving that appointment to the currently acting trustee and then forming the new trustee.

So it's likely a simple amendment, could swap out the trustees or add a co-trustee but you would want to look at the trust document to be sure and follow the process exactly as laid out in the trust document and I would recommend, you work with an attorney to draft this amendment. It shouldn't be a super complicated amendment or removal and replacement of trustee but you do want to make sure it's correct and aligns with the rules laid out in the trust document.

Now, if your mother has died, then it's unlikely you can replace the trustee at this point without court action and it would have to be the trustees doing something wrong, violating their fiduciary duties as trustee but if your mother is dead, she cannot execute an amendment anymore. In most cases, a Revocable Trust, in almost all cases, a Revocable Trust becomes Irrevocable, after the death of the Settlor, the person who created it, in this instance your mother.

So great question about how to add a co-executor to a trust. It's a fairly simple process, consult the trust document then draft the actual, if your mother's alive, the actual amendment or replacement and removal of trustee document and your mother would sign and date it, generally, in front of a notary.

Excellent question and thank you for asking!

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