Can a trustee claim remainder property or any tangible property if the living Trust states that he is excluded?

Can a trustee change a living Trust for their benefit?

Asked on November 29, 2018 under Estate Planning, South Dakota

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

The trustee cannot alter the terms of the living Trust.  This is a breach of fiduciary duty.  The trustee's duty is to administer the living Trust; not claim its assets.
Your remedy is to sue the trustee for breach of fiduciary duty and specifically conversion which is theft in a civil case.  The remedy you should seek is a constructive trust which will require the trustee to return the property to the trust.  If the trustee has sold the property, a constructive trust can be used to trace what was stolen and return the proceeds or the value of what was stolen to the trust.


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