Probate & Trust Law Section Conference Manual ... - Minnesota CLE

Now think of the following situations:
During his life grantor names Ed Zee a
cotrustee.
Grantor names Mary Ex and Joan Yu
cotrustees and then removes Mary.
Grantor then becomes incompetent.
Remove the letter “a” in sections x3 and
x4
Grantor writes a letter saying that on his
death he appoints Mary Ex as trustee?
Who is the trustee if grantor becomes incapacitated?
If the grantor dies?
Who is the trustee?
What happens?
What happens?
Consider the following language instead:
Trustees shall be appointed, removed and
replaced as follows:
x1 I shall be the initial trustee of the trust created
herein.
x2 Unless I am incapacitated, I reserve the power to
remove any trustee and to appoint successor or
additional trustees to serve during my lifetime.
x3 Upon my incapacity, Mary Ex shall serve as sole
trustee.
x4 Upon my death, Wye Bank shall serve as sole
trustee.
2. How Will Trustees be Removed and Appointed? In most instances the
removal of a trustee occurs in difficult situations in which precise
language will operate to keep the lid on a potentially volatile situation. As
with other specific provisions of an instrument, care must be taken to
assure that the removal language coincides with the boilerplate language
dealing with changes in Trustees.
a. The language from the MCLE Drafting manual dealing with
succession, appointment and removal of trustees reads as follows:
“Trustee Succession, Appointment and Removal Procedures. If a vacancy in the
trusteeship occurs and a successor trustee to fill such vacancy is named in this
agreement, the remaining trustees shall promptly notify such named successor,
in writing, of the occurrence and date of such vacancy. A named successor
trustee’s appointment shall become effective if the successor trustee’s written
acceptance is filed with another trustee or, if none, with a court having
jurisdiction over the trust, within thirty days following the date of such notice.
To effect the appointment of a trustee, the person entitled to make such
appointment shall file with the trustee to be appointed a written statement that
such appointment is made. The appointment of a trustee so appointed shall
become effective upon receipt by the person entitled to make the appointment of
the newly appointed trustee’s written acceptance within thirty days following the
filing of such written statement. A successor trustee shall, upon acceptance,
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