Amend plan to change trustee retroactively?

[Lori H]

Can you amend the plan retroactively, say for 6 weeks, to add a new trustee and remove the old one? Small SH 401(k) had a change in ownership and new trustee took over fiduciary responsibilities technically before the sale of the business was finalized. The retroactive amendment would be back dated to the date of the sale of the business.

[jpod]

This should not be a tax-qualification issue. However, trustees cannot be replaced "retroactively." The existing trustee must either resign or be removed by the settlor, and then the settlor appoints a successor trustee, but unless you believe in time travel that can't be done retroactively. The Plan's Trust Agreement, or the trust provisions of the Plan document, will spell out the procedures for resignation and removal and the notice period associated with that.

[Lou S.]

You can date the amendment anything you want but if there is a law suit for the overlapping period I'm guessing both parties get named and they let the courts decide who the responsible fiduciary is (was) at the time.