Ask a Lawyer - Archive

If there are co-trustee's in a will from 2003 where one of the trustees are 83 years old and becomes physically and mentally ill later on, does the other trustee automatically get the right to make real estate decisions or financial decisions or does he have to file for the right in surrogate court to be the sole trustee? Does he automatically become the sole trustee or must he file to become sole trustee in surrogate court.

The answer depends on what the will provides. Some wills say that when one trustee can no longer act, the remaining trustee can act alone. Other wills say that there should always be two acting trustees and a substitute is named in the will. If no substitute is named or that person declines to act, then it is necessary to ask the court to appoint a substitute.