March 16, 2022

Substituted Judgment: The Case for an Expansive Definition of ‘Successor Trustee’

Private client partner Lisa Presser and associate Brian Balduzzi coauthored an article for the New Jersey Law Journal that addresses the question of “when does a trustee not named in the governing trust instrument qualify as a successor trustee, under the Surrogate Court’s jurisdiction, versus as a substituted trustee, under the Superior Court’s jurisdiction?”

Presser and Balduzzi note that the Superior Court rules and definitions regarding successor trustee appointments, when read with the relevant statutes, leave a substantial gap that courts and practitioners must fill. They outline these ambiguities and how the distinction between the type of trustee affects both the time and processes for these appointments.

The authors also explain why the Civil Practice Committee should amend the rules to clarify that a trustee nominated under a procedure within the governing trust instrument should qualify, not as a substituted trustee, but as a successor trustee, which would streamline the appointment procedure, effectuate the settlor’s intent and harmonize the rules with the applicable statutes.

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