After attending Mary Beth's webinar on living trusts last week (very good), I came away with several issues that are governed by state law. Does anyone have a citation or a good reference for state law? I am looking for info on such issues as whether a trustee can appoint an agent; are joint signatures required if trust is silent on co-trustees' authorities; is a trust assumed to be revocable if not expressly stated, etc.?? Thanks.

Unfortunately Massachusetts trust law (Chapter 203) does not provide the answers you seek.

Most states have adopted some version of the Uniform Probate Code or Uniform Trust Code which usually provide the following:

1. If 2 trustees are appointed both must act with unanimous consent unless the trust agreement provides to the contrary.
2. If there are 3 or more trustees then a majority must concur before taking any action.
3. A trustee or cotrustee may not delegate their duties (even to a cotrustee) unless the trust agreement provides to the contrary.

Some of these rules become a problem when Mom and Dad create their living trust and want to convert their joint account into a trust account (suddenly there is a dual signature requirement and they cannot give an adult child a power of attorney unless the trust agreement provides to the contrary).

If the trust agreement fails to provide for an one signature requirement and/or the right of a trustee to use a power of attorney then the trust agreement must be amended PROVIDED the trust is a revocable trust.

The trust agreement normally will indicate in first 2 pages if it is revocable or irrevocable. If you cannot find any such statement then look at the section of the trust agreement that specifies what rights the grantor(s) retain [the grantor is the person who creates the trust and sometimes is also called the settlor or trustor]. If the grantor retains the right to revoke or amend the trust then you have a revocable trust.

I used to work for a large bank in California and this was a constant problem. I eventually created a simple one page form that the grantor(s) could sign that would act as an amendment to a revocable trust to provide that with respect to any bank accounts that only one signature was necessary for any action notwithstanding any contrary language in the trust agreement. The grantor(s) would sign the document and an employee would notarize the signature(s).

Of course if the trust was irrevocable then it cannot be amended.

A major clue as to whether or not the trust is irrevocable or not is the trust's tax id number - if an EIN is being used then the trust is irrevocable and if the grantor's SSN is being used then the trust is revocable.

Hope the above helps. If you have more general trust questions feel free to send me a PM.

Thanks. This confirms what I was able to get from Chapter 203. I didn't know if MA adopted a uniform code. You're right about parents setting up a living trust, then wanting to add an adult child as an authorized signer without the proper authorization in the trust. Actually, we see very few new irrevocable trusts, but are beginning to grapple more and more with grantor trusts in which the grantor is now deceased, and the successor trustee is not very knowledgeable.

Usually after the first spouse dies, the family living trust splits into 2. The trust which is funded with the decedent spouse's assets becomes irrevocable at that point in time (and needs an EIN - it also becomes a new customer for CIP purposes). If Mom and Dad have not amended the trust before the first one dies it is too late to amend the decedent's trust.
The trust which is funded with the surviving spouse's assets remains revocable (and uses the surviving spouses SSN). This trust can still be amended.