Massachusetts Agencies

Death of Trustee

Trusts and Trustees

When one of multiple trustees dies the title to the property held in trusts and the powers over the same is vested in the remaining trustees. See Fratcher, Scott on Trusts, Little, Brown & Company (Fourth Edition, 1988), §195. A deed to two or more trustees, unlike other conveyances, are governed by the common law. The trustees hold their title jointly (and not in common). See G.L.c. 184, §7. That takes care of the question as to whether the two remaining trustees in this matter can now convey out. The answer is that they can.

The remaining question is whether death tax releases are required. Under federal law, non-probate (e.g., joint) property when conveyed out by the surviving joint tenant, is divested of the death tax lien. See Massachusetts Conveyancers' Association Title Standard No. 3. What about the state death tax? If the trustee was also a beneficiary an M-792 would be required; if not, then, inasmuch as the trustee held bare legal title, we would not require such a release (although I cannot point to any authority for this statement).[1]

1 Neither can any probate attorneys with whom I have previously discussed this subject!