Trusts and Estates

Ca. Trs. & Estates Quarterly 2018, Volume 24, Issue 4

THE "EMPTY CHAIR": HOW TO ACCOUNT FOR THE RIGHTS OF CONTINGENT REMAINDER BENEFICIARIES IN THE EVENT OF INCAPACITY

By Patrick A. Kohlmann, Esq.*

I. INTRODUCTION

Clients are living longer. An aging populace inevitably means successor trustees taking over during the lifetime of the settlor. When a settlor of a revocable trust has become incompetent, to whom does the successor trustee owe his or her statutory duties? One perspective is that settlor intent should be paramount; if a settlor created a trust and entrusted a successor trustee to manage the trust in a given manner, the analysis should end there. The other view demands that successor trustees be accountable to contingent beneficiaries in order to protect the settlor.

This article reviews how California law and the Uniform Trust Code have addressed this problem.

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