Waldron v. Susan R. Winking Trust, No. 12-18-00026-CV, 2019 WL 3024767 (Tex. App.—Tyler July 10, 2019, no pet. h.).


Successor Trustee


The trustee resigned and the alternate declined to serve. The settlors anticipated this possibility by providing a method for the beneficiary to fill the vacancy with a bank or trust company. A problem arose because the beneficiary could not locate a bank or trust company willing to serve as the trustee. Accordingly, the beneficiary acting pro se asked the court to appoint a specified individual as the trustee and the court agreed. Approximately one year later, the beneficiary asked to court to remove this trustee and appoint the beneficiary herself as the trustee. The trustee responded that he was willing to resign as long as the court appointed a qualified trustee and discharged him from liability by finding that he complied with the terms of the trust. The court agreed with the trustee but refused to appoint the beneficiary as the trustee and instead gave the beneficiary a month to locate a qualified successor. The beneficiary located such a person and asked the court to appoint her. Three days later, the beneficiary filed a motion for a new trial contending that the court erred in, among other things, ignoring the trust language stating that a trustee can be terminated immediately. After additional court judgments, the appellate court’s determination that the court judgments were not final appealable orders, and an additional trial, the beneficiary again appealed asserting that the court ignored the trust language regarding the beneficiary’s right to terminate a trustee immediately.


The appellate court affirmed. The court explained that because the trust did not provide for the eventuality that no bank or trust company would accept the trust, the provisions of the Texas Trust Code apply which allow the court to appoint a successor on petition of any interested person. Prop. Code § 113.083(a). The beneficiary did not have the ability to appoint a non-bank, non-corporate successor trustee.


Moral:  First, a settlor who wants a successor trustee to be an unnamed bank or trust company should anticipate that no such entity will accept the position and provide an alternate trustee or method for selecting the trustee. Second, proceeding pro se in a trust action is not prudent.