What is a successor trustee? And, can she live abroad? We get questions like these fairly frequently, as immigrants to the United States often try to buy a home as quickly as possible. But, they may not have anyone living in the United States who they trust to take care of their wishes.
Q: My daughter is establishing a living trust and wants to appoint me as the successor trustee. I am not a US citizen, I do not reside in the US nor do I have a green card. My question is: can I become the successor trustee? Thanks in advance for your comments.
A: A living trust is a document that allows for the easy transfer of property from one person to another upon the death of the owner of the property. In your case, your daughter owns a home and other assets. These other assets can be real estate holdings, bank accounts and even accounts at financial institutions that hold stocks, bonds and other securities.
You can transfer all of these assets using a will but upon the death of the owner of the assets, you would need to probate the will and may need court approval or appraisals to sell or transfer assets. You may also need to account to the probate court for the actions taken and other activities done on behalf of the person that died.
On the other hand, a living trust allows a person to own all those same assets, but when the owner of the trust dies, the successor trustee can sell or transfer the ownership of the assets without court approval. The system is quite easy and quick.
When you have a will, the person that handles the affairs under the will is the executor of the will. That is the person that would go before the court (or through an attorney) to get authorization to transfer title of a home or to have the authority to go to banks and other financial institutions to transfer assets held by those banks or institutions. When the executor of a will is unable or unwilling to handle the affairs, the will usually appoints a person that would act in that capacity.
On the trust side, the owner of the assets is the trustor and the person that handles the affairs of the trust is the trustee. While the owner is alive, the owner is the trustor and usually the trustee as well. However, upon his or her death, the successor trustee takes over. And, if that successor trustee is unable or unwilling to serve, the contingent trustee comes to help out. In your question, you are the successor contingent trustee.
Given that you live outside of the United States, it might be hard for you to handle the affairs of the trust. Having said that, if you have contacts in the United States and the only purpose of the trust is to hold the ownership of a home, your activities might be limited should you have the unfortunate circumstances (through the untimely death of your daughter) of becoming the trustee.
An attorney located in the same city or area where the property is located could assist you in handling whatever might need to be done for the trust to sell the property. It’s not an ideal, especially if circumstances prohibit you from entering the U.S.. We think that a local person might be better suited to handle the trust affairs, but if your daughter doesn’t have somebody she trusts you should be able to handle it, even from abroad.
With email and overnight delivery services, you can handle most affairs relating to a trust. We suggest you to talk to your daughter and have her make sure that the attorney she used to draft the trust agreement doesn’t have a problem with you becoming a contingent successor trustee. We’d also suggest that you talk to your daughter and make sure she has an attorney that is willing to work with you, should the circumstances requires it.
Ilyce Glink is the Publisher of ThinkGlink.com and the Founder/CEO of Best Money Moves. Sam Tamkin is a real estate attorney based in Chicago.
©2017 by Ilyce Glink and Samuel J. Tamkin. Distributed by Tribune Content Agency.