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Successor Trustee Accepted Role in Timely Fashion

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successor trustee

It’s a problem we see increasingly often. A trust will name a trustee, and even a successor trustee. What’s the problem? The successor trustee is not available, or fails to act, or is otherwise no longer the right choice.

How does a new trustee take over? It is sometimes difficult to figure out when the new trustee should begin to act. Too often, the identity of the successor trustee is uncertain.

Sidney Goodman’s trust

Consider the trust signed by Minnesota resident Sidney Goodman in 1985. Lawyers sometimes worry that their clients do not stay in contact often enough; that does not appear to have been a problem for Mr. Goodman. By the time of his death in 2013, he had amended his trust a total of 21 times.

Mr. Goodman and his son John were co-trustees of the trust until Mr. Goodman’s death. The trust had a mildly complicated structure for designating a successor trustee. Upon Mr. Goodman’s death, his role as co-trustee would fall to one of his attornies, David Gotlieb. If son John were to die, his co-trustee position would become vacant unless he had named someone to succeed him.

After Mr. Goodman’s death, son John continued to administer the trust in his role as co-trustee. The lawyer, Mr. Gotlieb, did not step in to act with John. For over two years John was effectively the sole trustee.

When John died unexpectedly (at age 66), no one was acting as trustee of Mr. Goodman’s trust. Eight days after John’s death, Mr. Gotlieb signed an acceptance as successor trustee of his late client’s trust, and began to administer the trust.

The dispute over the successor trustee

Before son John’s death, he had acted (with full authority under the trust terms) to purchase trust assets for a reduced price. That process was underway at his death, and Mr. Gotlieb, as the successor trustee, proposed to continue the proceeding. That would effectively transfer some of the value of the trust to John’s estate (and his own trust).

One of the beneficiaries of Mr. Goodman’s trust objected. She saw in the trust document that a majority of the income beneficiaries could name a successor trustee if there was no trustee in place. She argued that Mr. Gotlieb had waited too long to accept his role as successor to Mr. Goodman as co-trustee, and therefore appointed another person — Mr. Sherman — as trustee.

Mr. Sherman then filed a probate court proceeding seeking clarification of his role as successor trustee. The Minnesota probate judge ultimately ruled against Mr. Sherman, finding that Mr. Gotlieb was the successor trustee despite his not having acted between the time of Mr. Goodman’s death and the death of Mr. Goodman’s son.

The Minnesota Court of Appeals, in an unreported decision, agreed with the probate court, and affirmed its ruling. The appellate judges noted that Mr. Gotlieb needed to act within a “reasonable” time — and before Mr. Sherman had been “appointed” by the beneficiary, in any event. In re: Goodman Revocable Trust, February 12, 2018.

What should one do about successor trustees?

The deeper message from the Goodman decision is about planning ahead. Of course every trust should name a successor trustee. It also makes sense to provide a mechanism for flexibility — to name a successor trustee in unanticipated sequences of events.

Mr. Goodman’s trust actually did that. It named son John as co-trustee with Mr. Goodman while he was still alive (a practice we increasingly find useful). The trust also gave each trustee and successor trustee the power to name their own successors (another practice we commonly apply in trusts we draft).

If anything, Mr. Goodman’s arrangement for successor trustees might have been too elaborate. He named his own successor to act as co-trustee with his son John after his own death. It is difficult to guess whether Mr. Gotlieb made a conscious decision not to step in while John was acting as trustee alone. There is nothing in the court’s decision indicating that Mr. Gotlieb or anyone in his firm prepared the trust. It is possible that he did not even realize that he was named as a successor trustee.

Other alternatives for successor trustees

Clients sometimes choose to name a bank or trust company to act as successor trustee, partly to avoid just this kind of confusion. Even that is an imperfect decision, since corporate trustees have steadily moved away from acting except in the largest trust estates. Because of son John’s co-trusteeship, and the permission given in the trust for him to enter into a favorable deal with trust assets, a corporate trustee might have declined to serve in any event.

Was it peculiar for Mr. Goodman to name one of his lawyers as successor trustee? Not at all. A quick look at Mr. Gotlieb‘s online information indicates that he might be especially qualified to handle complicated business dealings. At Fleming & Curti, PLC, we often act as fiduciary (trustee, agent, or personal representative) for our clients; the practice is not at all uncommon.

What about Arizona law?

Whenever we write about a court decision from outside Arizona, readers might reasonably wonder whether we endorse the court’s opinion, or would apply it to Arizona cases. Of course every case is different, and small changes in facts can change the legal outcome dramatically. State laws do differ, as well.

In this Minnesota case, the appellate court applied Minnesota’s version of the Uniform Trust Code (the UTC). Arizona has also adopted a version of the UTC. The particular language cited in Goodman was also adopted, in exactly the same words, in Arizona.

Does that mean that the Goodman case would be good law in Arizona? Not necessarily. First, it is an “unreported” decision — which means that the appellate court determined that it should not be cited as precedent in future cases. And, as we have already noted, different facts make a huge difference. Still, the general principle — that the settlor of a trust should have his or her wishes carried out for trustee and successor trustee selection — is valid in Arizona, as well.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.