With the recent enactment of the Massachusetts Uniform Trust Code and the Massachusetts Uniform Probate Code, there are procedural changes governing how an appointed fiduciary voluntarily resigns.
Amended M.G.L. c. 190B, § 3-610 governs the resignation of a personal representative:
"A personal representative may resign the personal representative's position by filing a written statement of resignation with the court after having provided at least 15 days written notice to the persons known to be interested in the estate. If no one applies or petitions for appointment of a successor representative within the time indicated in the notice, the filed statement of resignation shall be ineffective as a termination of appointment and shall be effective only upon the appointment and qualification of a successor representative and delivery of the assets to such successor representative."
A resigning Personal Representative must file a specific court form - the "Statement of Resignation of Personal Representative" numbered MPC 264. The resigning Personal Representative must give fifteen days notice to the interested persons, which allows them time to nominate a successor personal representative. As the statutory language above makes clear, the court will not accept the Personal Representative's resignation until (i) the court has appointed a qualified successor personal representative and (ii) the Personal Representative delivers the estate assets to the successor personal representative.
The Personal Representative should be aware of these requirements because their resignation is not effective upon filing. The resignation is effective only when the court approves the resignation, which will occur when a qualified successor personal representative is nominated and appointed and the Personal Representative delivers the estate assets to that appointed successor. A prudent Personal Representative should plan ahead, including communicating with the beneficiaries, to ensure that a successor personal representative is timely nominated so that their own resignation will not be delayed.
As a Trustee who wishes to resign, the governing statute is M.G.L. c. 203E, § 705. A resigning Trustee needs to file a petition, which is a court form numbered MPC 266, requesting court approval of their own resignation. Within this petition, a resigning Trustee should also request the appointment of a successor trustee. A prudent resigning Trustee should also file assents signed by all of the interested persons approving the resignation. Without such assents, the court issues a citation requiring that the petitioner (the resigning Trustee) give notice of the petition to all of the interested persons, thereby delaying the resignation and allowing interested persons an opportunity to contest the resignation.
To approve the resignation of a Trustee, the court issues a Decree and Order on Petition for Resignation of a Trustee, which requires that "[t]he Trustee(s) shall proceed expeditiously to deliver the trust property within the Trustee(s) possession to the co-Trustee, successor Trustee, or any other person entitled to such property." Similar to the situation involving a resigning personal representative, when a trustee resigns the court is concerned about protecting trust assets.
Like a resigning Personal Representative, a resigning Trustee should plan ahead and coordinate the appointment of a successor trustee to make the transition as smooth as possible.