Kendall and Bexar County Estate Planning
Texas Estate Planning Blog
This is a common concern of people when they learn they have been named as a successor trustee, says nwi.com in the article “Estate Planning: The role of a successor trustee.” The first thing to do? Verify that you are a successor trustee and what authority and powers you have. If the settler is disabled, rather than deceased, you’ll need to be sure that you have complied with any requirements to take the position.
The trust that names you as a successor trustee is likely where you will find details of what you must obtain to assume the authority. For example, you may need to have a letter from a physician stating that the settler is incapacitated and can no longer manage his own affairs.
If the settlor is deceased, establishing your authority as successor trustee is easier. Usually, all you’ll need is a death certificate.
Once this has been established, you’ll need to be able to prove that you have this role. Usually this is done through the use of an Affidavit of Trust and Acceptance and Oath. An estate planning attorney will be able to help you with these documents. Some affidavits affirm under penalty of perjury that the affiant is the successor trustee and that you are accepting the designation and agree to serve under the terms of the trust and the laws of your state.
Sometimes estate planning attorneys may approach this differently. Some may use a “certificate of trust,” while others will simply rely on the trust agreement itself. The important thing is that the successor trustee’s authority is demonstrable.
Once the successor trustee has established that he is appointed properly, he can start administering the trust.
What about selling the family home? Real estate transfers are handled through the local government. To sell a home, you’ll need to transfer the title by signing a new deed, so you should try to find the current deed to the home and provide that to the attorney who may be assisting you with the administration process. Some attorneys will be able to get a copy of the deed from the local recorder's office electronically, depending on your locale.
When a successor trustee transfers real estate, a copy of the affidavit of his appointment as the successor trustee and relevant documents will likely be recorded with the transfer documents. The transfer needs to be approved by a title examiner, and the examiner will want proof that the person in charge of the transaction has the legal authority to do so.
Other assets are transferred in a similar fashion. The asset holder is contacted, a copy of the affidavit (or certification of trust) and proof of designation as a successor trustee will be needed.
Some estate planning attorneys will add a letter of instruction to the successor trustee providing them with helpful information and tips about estate administration.
Reference: nwi.com (Jan. 12, 2020) “Estate Planning: The role of a successor trustee”
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