Short answer. He needs the court's permission. Rule 98, Section 9 requires the trustee to petition the court having jurisdiction of the trust, and after due notice and hearing, the court may order the sale or encumbrance and direct how proceeds are reinvested, following procedures similar to selling a ward's property.
What the law says
When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court having jurisdiction of the trust may, on petition and after due notice and hearing, order such sale or encumbrance to be made, and the reinvestment and application of the proceeds thereof in such manner as will best effect the objects of the trust.
Rule 98, Section 9 — Proceedings for sale or encumbrance of trust estate. Read the full provision →
When this applies
The section covers a sale or encumbrance of trust property that is necessary or expedient — a real, articulable need, not simply a convenient option the trustee happens to prefer. Both real and personal property held in trust are covered, so the requirement is not limited to land or buildings; it reaches any trust asset the trustee proposes to sell or mortgage.
The process required
The court having jurisdiction of the trust may order the sale or encumbrance only on petition and after due notice and hearing, meaning the trustee has to bring the matter to court rather than act unilaterally. Interested parties, such as the trust's beneficiaries, get notice and the chance to be heard before the court decides whether the proposed sale or encumbrance should actually be authorized.
What the order covers beyond the sale itself
The order can direct the reinvestment and application of the proceeds thereof in such manner as will best effect the objects of the trust, so the court's role extends past merely authorizing the sale to shaping what happens to the money afterward. That means a trustee cannot simply sell the property and then decide independently how to use the proceeds — the court can specify how the proceeds are to be reinvested to keep serving the trust's original purpose.
Borrowed procedure from guardianship
The petition, notice, hearing, and order are required to conform, as nearly as may be, to the provisions concerning the sale or encumbrance by guardians of the property of minors or other wards, tying this trustee procedure to the same framework already used under Rule 95. A trustee preparing the petition can look to how guardianship sales are handled procedurally as the template for what the trust petition itself should contain. A trustee who sells or encumbers trust property without first obtaining that court order risks having the transaction challenged as unauthorized, since the court's approval is what gives the sale its legal footing under this section.
Related provisions
- Rule 98, Section 9 — Proceedings for sale or encumbrance of trust estate
- Rule 98, Section 8 — Removal or resignation of trustee