Affidavits of Change of Trustee in California
An affidavit of change of trustee is a sworn statement used to formally document and communicate that the trustee of a trust has changed. In California, these affidavits are commonly used to update third parties, such as banks, title companies, and county recorders so they recognize the new trustee’s authority to act on behalf of the trust. Properly preparing and, where appropriate, recording an affidavit helps ensure continuity in trust administration, prevents delays in transactions, and reduces the risk of disputes about who has authority to manage trust assets.
Legal Requirements and Procedures in California
While California’s Probate Code governs trusts, there is no single, one-size-fits-all statutory form titled “Affidavit of Change of Trustee.” Instead, the requirements flow from a combination of the trust instrument, the Probate Code, and practical needs of third parties who must rely on the affidavit. In practice, the process typically includes:
Confirm authority for the change. Review the trust instrument to identify who may remove, resign, or appoint a successor trustee and what conditions must be met (e.g., resignation, death, incapacity, majority vote of beneficiaries, or a trust protector’s action). Follow any specified notice or acceptance procedures.
Establish the fact of succession. Prepare a declaration or affidavit, signed under penalty of perjury under California law, stating:
The name of the trust and date of execution (and any amendments, if relevant).
The identity of the former trustee and the reason for the change (e.g., resignation, death).
The identity and address of the successor trustee(s).
The date the successor’s appointment became effective.
That the successor trustee is authorized to act under the trust.
Use a Certification of Trust where appropriate. California Probate Code permits a certification of trust, which summarizes key trust terms without disclosing the entire instrument. Many institutions accept a certification of trust accompanied by an affidavit of change of trustee when the trustee changes.
Notarization. Although not always mandated by statute, notarization is standard and often required by financial institutions, title companies, and county recorders.
Recording for real property. If the trust holds California real property, record the affidavit (often titled “Affidavit (or Declaration) of Successor Trustee” or “Affidavit of Change of Trustee”) in the county where the property is located. Attach required supporting documents (for example, a death certificate for a deceased trustee) and include a legal description or Assessor’s Parcel Number if the affidavit relates to specific property. Recording gives public notice of the new trustee’s authority and helps clear title.
Provide notices if required. If the trust instrument or applicable law requires notice to beneficiaries upon a change of trustee, comply with those notice requirements, including any deadlines and content specifications.
Update financial institutions and counterparties. Deliver the affidavit and certification of trust (and any institution-specific forms) to banks, brokerages, insurers, and other parties so the successor trustee can access and manage trust accounts and policies.
Common Scenarios Triggering a Change of Trustee
Resignation. A serving trustee steps down, often by written resignation pursuant to the trust’s terms.
Death of trustee. A successor trustee takes office upon the prior trustee’s death, frequently supported by a death certificate.
Incapacity. If the trust defines incapacity and sets proof requirements (e.g., physician declarations), a successor may assume office upon those conditions being met.
Removal. A trustee may be removed per trust terms, by co-trustees, beneficiaries, or by court order for cause (e.g., breach of duty).
Routine succession planning. Many revocable living trusts designate successor trustees to step in when the settlor-trustee can no longer serve.
Corporate trustee changes. A merger, resignation, or replacement of a corporate fiduciary can require documentation to confirm the new fiduciary’s authority.
Potential Challenges and Considerations
Trust instrument controls. Failure to follow the trust’s exact procedures for resignation, removal, or appointment can invalidate the change or create disputes. Always confirm prerequisites and documentation requirements.
Evidence of triggering events. Institutions typically require proof—death certificates, physician letters for incapacity, or written resignations/removal notices. Gather and attach these as needed.
Multiple co-trustees. If co-trustees remain, clarify whether they act jointly or independently, and whether remaining trustees continue or a new successor is required to maintain the specified number of trustees.
Title and vesting. For real property, ensure the chain of title is clear—reflecting the trust, original trustee, and the successor trustee. Recording mistakes or incomplete descriptions can delay sales, refinances, or transfers.
Beneficiary notices and potential objections. If beneficiaries must be notified, provide timely, compliant notices. Anticipate and address concerns to mitigate contest risk.
Institutional quirks. Banks and brokerages may have internal forms or specific wording requirements. Obtain their checklists early to avoid processing delays.
Privacy versus disclosure. Use a certification of trust to protect sensitive terms while providing sufficient information to third parties. Avoid recording the full trust instrument unless advised.
Out-of-state assets. Properties or accounts outside California may require compliance with the other jurisdiction’s recording or onboarding requirements.
Tax and reporting issues. A change of trustee can affect EIN usage for irrevocable trusts and information reporting. Coordinate with tax advisors to avoid filing errors.
Court involvement. Most routine changes proceed without court supervision, but contested removals, ambiguities in the trust, or allegations of breach may necessitate petitions for instructions or confirmation orders.
Conclusion
An affidavit of change of trustee is an essential tool for documenting trustee succession and ensuring third parties recognize the new trustee’s authority. In California, success depends on following the trust’s terms, preparing a clear and notarized affidavit, recording when real property is involved, and providing required notices and supporting evidence. Thoughtful compliance and complete documentation keep trust administration on track, minimize delays, and reduce the risk of disputes. For complex situations, especially involving incapacity determinations, removals, or contested successions—consult counsel to confirm proper procedures and protect the trust’s interests.
Disclaimer: The information provided in this blog is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship between you and Apricity Law, PC. Legal issues are complex and fact-specific; you should not act or rely on any information contained herein without first consulting a qualified attorney regarding your specific situation. While we strive to keep this content current, laws and regulations may change, and we do not guarantee the accuracy, completeness, or timeliness of the information provided. If you require legal assistance, please contact Apricity Law, PC to discuss your matter.