If your mom (or dad) has a revocable living trust and has now been diagnosed with dementia or another condition affecting mental capacity, the successor trustee is going to have to step. If that is you, you need to understand your responsibilities and take them seriously. Many people in this situation feel overwhelmed, scared of making a mistake, and unsure what the law expects of them, so they come to us for guidance. That’s great, we love to help! But, on the other hand, we often have new clients come to us after they have been acting as successor trustee for months or years, completely unaware of their legal obligations. We hope with this article to lay out a path forward for trustees that will help them become and remain legally compliant, and ease some of the stress inherent in the job.
While your mom was healthy and competent, her revocable living trust was easy for her to manage. Under California Probate Code §15800, she was the only person the trustee had to answer to. No other beneficiaries (including you) had a right to information or to question how she handled trust money.
If your mom is the only person with the power to amend or revoke her trust, once she can no longer manage her own affairs, under California law the trust is treated in many ways as if your mom had died. As a practical matter, the trust becomes irrevocable, even though your mom technically still has legal power to revoke her trust. This means several big shifts happen:
1. You, as the trustee, now owe duties to ALL beneficiaries — not just Mom.
For example, beneficiaries who would be entitled to trust property if mom were to die, now have the right to information about the trust. You are required to provide the remainder beneficiaries (often times Mom’s other children) with a legal notice informing them:
- Mom is incapacitated
- You are now the trustee
- Providing them a copy of the trust
2. You have a duty to act.
You do not get to take care of your trustee duties when you feel like it or when it is convenient. You must do what is necessary in the best interest of your mom, even if it is inconvenient for you. You are now a fiduciary.
3. You must actively use trust assets for your mom’s care.
Your primary job is now to make sure your mom’s needs are met:
- medical care
- caregivers
- housing
- transportation
- medications
- general well-being
You are expected to use trust money for these things — not hoard it to “save the inheritance.”
4. You Must Keep the Remainder Beneficiaries Informed
- You must respond to the beneficiaries’ reasonable requests about the trust property
- You must provide an annual accounting to mom and the remainder beneficiaries
Serving as trustee for a parent with dementia is both a legal responsibility and an emotional one. You are now the person who must safeguard the trust, meet your mom’s needs, and help ensure the rest of the family understands what is happening.
The good news: with the right guidance, trustees can manage this role successfully — and with confidence. If you’re stepping into this role now, or you want to know what would happen if you had to serve as trustee for a parent in the future, our office can help you understand the process and avoid costly mistakes.
Trustee Checklist
Taking over for your mom can feel like a lot, but breaking it down helps.
✔ 1. Confirm the incapacity properly.
Look at the trust document. How do you prove mom’s incapacity? Does it require one doctor’s letter? Two? A written declaration from a group of family members? Follow the trust exactly and gather your proof.
✔ 2. Confirm your new role as trustee.
You will need a certification of trust, which is a legal document that proves to financial institutions that you are the trustee and they can legally work with you and allow you access to trust assets.
For real estate, you will need to execute and record an affidavit of change of trustee so that you have the legal power to sell or encumber mom’s real estate, if that is what is in her best interest.
✔ 3. Take control of all trust financial assets.
You’ll need an organized list of what the trust owns. You will contact the financial institutions, provide them with your certification of trust and ask them to retitle the accounts. This may include:
- checking accounts
- savings accounts
- investment accounts
- shares of corporations or LLCs
- insurance policies, such as homeowner’s insurance
- annuities
- titled personal property, such as cars, RVs, boats
✔ 4. Start managing money under the “Prudent Investor Rule.”
This means you must invest trust assets sensibly:
- not too risky
- not too conservative
- appropriate for your mom’s needs and the trust’s long-term goals
If the markets move, you’re expected to monitor and respond — not ignore.
✔ 5. Take care of your mom.
This means paying all her bills and seeing that she has what she needs to live her life comfortably. This could include caregivers, medications, taxes, utilities, health insurance, property insurance, mortgage, and anything else she needs. You can (and should) use trust funds for this purpose. You may not use trust property for the benefit of anyone other than mom. No gifts, no loans.
✔ 6. Communicate as required.
- You are required to notify other beneficiaries that you’ve become the trustee
- You must provide them with a copy of the trust
- You will need to provide accountings at least annually
Clear communication can prevent misunderstandings and family conflict.
✔ 7. Keep excellent records.
Every dollar that goes in or out of the trust should be documented. Good records protect you — and make future required reports much easier.
[AD] Estate planning addresses many important factors about your future and legacy. Where do you get started if you don’t have an estate plan in place? If you do, how have new laws and life transitions changed? Will your plan still protect you? Regardless, you deserve to have control over your wants, needs, goals, and hopes for the future. We can help you understand your options and, legally, how you will best be protected at all touchpoints. Get started today by scheduling a free discovery call so we can discuss your needs. Visit https://absolutetrustcounsel.com/scheduling/ or call us at (925) 943-2740.
