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Case of First Impression Out of Pennsylvania: Is a No Fault Trustee Replacement Clause Valid in West Palm Beach?

Uncategorized • Jun 23, 2015
post about Case of First Impression Out of Pennsylvania: Is a No Fault Trustee Replacement Clause Valid in West Palm Beach?

Are you currently a beneficiary to a trust where the trustee is   not performing up to your standards? Do you know how you can remove a trustee without showing a legal fault? Are you currently drafting a trust document in West Palm Beach? Have you considered adding a section for how to remove a trustee? What about a no fault removal clause? Do you know what this is?

No Fault Removal Clause

  • Normally in order to remove a trustee a beneficiary will have to show fault.
  • Examples include self dealing, imprudent investments, comingling of funds and anything else that just in general is not what a trustee should be doing.
  • But experienced Palm Beach probate litigators know that sometimes you do not need fault to remove a trustee.
  • This is done through a no fault removal clause.
  • Do you think these are wise to put into a trust charter?
  • Experienced Palm Beach probate litigators will tell you, it depends.
  • How many beneficiaries will there be?
  • Do you want them all to have the power to in fight and then go ahead and remove the trustee if he does not take their side?
  • Also how is the trustee supposed to make distributions?
  • Are they based on discretion rather than need?
  • Do you really want beneficiaries to be able to remove a trustee when they disagree with his discretion?
  • What do you think is the right choice to make sure your trust lasts as long as you want and is not absorbed in lawyers fees and trustee disputes?
  • It is about balancing the purpose of the trust and a need for administrative efficiency.
  • So is a no fault clause valid in Florida?

In re McKinney

  • Beneficiaries of a testamentary trust and a descendant’s trust petitioned for the no-fault removal of a trustee after an alleged substantial change in circumstances.
  • The change?
  • The family had moved to a different state.
  • Also several corporate mergers of original trust institutions lead to a different bank office being involved in the administration of the trust.
  • The Pennsylvania Superior Court dealt with what it described as an area of first impression, meaning new law.
  • They said that there was no need for a showing of harm if there was a no fault replacement clause.
  • Does this holding seem dangerous?
  • At one point is the beneficiary basically assuming the role of trustee if they can just fire anyone that they do not like?
  • Will these broaden the expenses on the court in overseeing trusts or make it easier as the no fault means no need for court?
  • Time will tell.

Want to read the whole case before you decide an opinion?

Click here for a full copy of the case.