Q. I am setting up a “Living Trust” and considering name all three of my children, together, as successor co-trustees. Do you have any thoughts as to whether that makes sense?
A. Yes, I do. Your desire to treat all of your children equally, or at least not to appear to favor one over the others, is understandable. However, naming all to serve together is not generally a good idea, and here’s why:
Need for Unanimity in Every Trust Decision: Unless your trust provides otherwise, California law requires that – where there are multiple trustees – all decisions by the trustees must be unanimous. What if one of your children does not agree with a decision suggested by the others? You may then have a “stalemate”. This would be of special concern if your children do not always agree with one another. Indeed, sometimes sibling rivalries — which were never fully resolved during childhood– might manifest in your children as adults, impairing the smooth administration of your trust.
Majority Rule? Providing that any decision must be made by a majority of the co-trustees might be a solution, providing that there are always at least three co-trustees. But, if for any reason one of your children were unable or unwilling to serve, reducing the co-trustees to only two, California law would generally then require unanimity between the remaining two.
Disagreements Could Present Problems: If one of your trustees felt that the others were acting inappropriately and, perhaps, in breach of their fiduciary duty, the non-consenting trustee(s) might then have a duty to petition the court to resolve the issue and/or to seek the removal of the offending trustee(s). Not only would this court proceeding potentially exacerbate the relationship between your children, but it would likely involve a significant expense to the trust, something that you would presumably prefer to avoid.
Authorize Actions by Any Trustee, Alone?: If you are determined to name all three of your children as co-trustees, you might consider a special provision in your trust to authorize trust action upon the signature of one (1) trustee, alone, albeit providing that he or she must first confer with the others. Again, however, if your co-trustees do not get along, empowering any trustee to have this unilateral power could again create problems: if the other two co-trustees disagree with the proposed action, and yet the initiating trustee nevertheless goes forward with it, his/her doing so will undoubtedly create further rift in your children’s relationship.
For all of the above reasons, I was always recommend that parents choose only one child at a time to be trustee, and designate the others to be the successor trustee, to assume that role only if the prior nominee is unable or unwilling to serve. To avoid hurt feelings, parents might explain their decision to their children in ways that minimize resentment, such as the following: choosing their individual trustees in birth order, or in geographic proximity to the parents, or based upon each child’s familiarity with financial matters, or based upon the time that each child would have to devote to the parents’ trust. Remember, being selected as a trustee is not only an honor, but can also be a burden in terms of the commitment of time and financial responsibility.
Alternatively, if there is much rivalry between the children, parents might select a professional trustee, such as the trust department of the parents’ favorite bank. But parents should first check with their bank, as some have requirements in terms of the size and composition of the trust estate that the bank will accept.