Since you created the trust in New York, but now live in Florida, one thing you must consider is whether the trust still serves its intended purpose when it was created. You mentioned it was unfunded, so it would not be too late to leave the New York trust unfunded, and proceed with a Florida trust, if that was determined to be the best course of action. An example of why you would consider this is that Florida has planning options that are not available in New York, and voce versa, so there may be provisions that are adviseable to include in this type of trust now that you are a Florida resident, and which were not options for inclusion when you loved in New York.
As to your questions regarding successor trustees, the terms of the trust will need to be reviewed in order to determine if the original trustee can appoint a new trustee, and who may serve as successor trustee.
I agree with Attorney Fredrick-it depends on the language in your trust.
If you cannot change the trustees-the appointed trustees(s) can resign and the beneficiares can usually appoint the next trustee.
Most irrevocable trusts allow the Trustee to resign but the Successor trustee has already been selected by the initial Grantor. One or more of the beneficiaries are permitted to act as Trustee, providing that is how you want your Trust to operate. Should you have addtional questions or wish to have the trust reviewed for free, please contact me directly at
[email protected]
or 954-944-2855 to schedule a free consultation.
Thanks,
Michael Wild
Generally a trust is not valid until funded. NY may have a different requirement than most states so the trust may be valid under NY law. I would probably just create a new Florida Irrevocable or Revocable trust depending on your objectives.
If you wanted to keep that trust, you could always fund it with a few dollars or even something as insignificant as a t-shirt. If the trust was funded then you will could provide that other assets are directed to the trust or you could do so by contract or beneficiary designations. If the successor trustee refuses to be appointed, one would have to look at NY law to see how a trustee is appointed. Generally state laws provide that when there is no successor trustee nor provisions for selecting one contained in the trust, then the beneficiaries can select one. You should talk with an estate planning lawyer or asset protection lawyer depending on your goals and determine what you should do with your circumstances and objectives.
The answer to your question depends on the specific terms of your trust. The appointment of trustees and successor trustees is one of the points that is usually dealt with in detail in the agreement. I would review your trust, with an attorney if the terms are not clear, and see if that answers your question. Assuming that the trust allows you to change trustees, there would normally not be a problem naming one of the beneficiaries as trustee.
An irrevocable trust is a relatively complex estate planning tool and is used in specific situations, often involving estate tax issues or asset protection. Since you have moved, it would be a good idea to review your entire estate plan with a Florida estate planning attorney to make sure that everything continues to reflect your objectives in the best way possible.
James Frederick
