Trusts are often designed to last for generations. But what happens when a trustee or another key trust officeholder can no longer serve—and the person responsible for naming a successor does not act?
The Delaware Trust Act of 2026 provides a practical solution.
Why This Matters
A vacancy in a trust office can create more than an administrative inconvenience. If a successor cannot be appointed, important decisions may be delayed, trust administration can become more complicated, and an otherwise well-functioning trust can become temporarily stuck.
This can happen for many reasons. A trustee may resign or be removed. A named successor may decline to serve. Or the person given the power to appoint a successor may be unavailable or simply fail to act.
The 2026 amendments to Delaware law provide a clearer path forward in these circumstances.
A More Practical Solution
New Section 3327A of Title 12 expands Delaware’s statutory process for filling vacancies. The law now applies not only to trustees, but also to other trust “officeholders,” including advisers, designated representatives, and enforcers.
Importantly, the new provisions apply to continuing trusts, not just trusts that are nearing termination. This recognizes that a vacancy can disrupt a trust at any point during its life.
Perhaps most significantly, the law establishes a 60-day provision. When the trust document requires a successor to be appointed—or when a trust has no trustee—the person with the power to make the appointment is deemed to have declined to act if that person does not make the appointment within 60 days after receiving notice of the vacancy.
This means that a lack of action does not necessarily have to leave a trust in limbo indefinitely.
What This Can Mean for Beneficiaries
For a continuing trust, the permissible beneficiaries and presumptive remainder beneficiaries may, when the statutory requirements are met, unanimously appoint a successor trustee or other officeholder. Delaware law also provides mechanisms that can make obtaining the necessary consent more practical, including virtual representation and the use of a designated representative.
The law does not require every vacancy to be filled. A vacancy needs to be addressed only when the governing instrument or applicable law requires an appointment. Other Delaware trust-planning tools, including trust modification and nonjudicial settlement agreements, may also be available when appropriate.
The Bottom Line
The Delaware Trust Act of 2026 strengthens one of the most important features of modern trust administration: continuity.
Trust documents are drafted to anticipate the future, but circumstances can change in ways that no document can perfectly predict. The new law provides greater flexibility when a succession provision does not work as expected and greater certainty when the person responsible for making an appointment does not act.
For clients, the practical takeaway is simple: a trustee vacancy no longer necessarily means a trust must remain stuck while waiting for someone to act. Delaware’s expanded framework gives trustees, beneficiaries, and trust professionals another tool to keep trust administration moving and preserve the long-term objectives of the trust.