What can I do if I’m the beneficiary of a special needs Trust that my cousin is the administrator of if I’ve found evidence that she’s been using the Trust to pay for items which are not for my benefit?

She’s been transferring money to a third unknown account and I found $800 paid to an airlines which were not related to any trip I am taking. When I asked her about this she freaked out yelled at me and refused to deal with it until I involved my aunt, who after speaking with her and learning I was seeking representation, promptly wanted no part in any of it. They are close, my aunt doesn’t particularly care for me. I need to leave the country in a week for a health related program and I do not feel comfortable dojng so unless I have help.

Asked on September 30, 2015 under Estate Planning, California


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

Answered 5 years ago | Contributor

You can sue the trustee for breach of the trust and seek to have the trustee removed and a successor trustee appointed.  If the trust includes provisions for removal of the trustee and appointment of a successor, those provisions should be followed.  If the trust is silent with regard to removal and appointment of a successor, your lawsuit against the trustee for breach of trust should ask the court to appoint a successor.  Your lawsuit against the trustee should seek the remedy of a constructive trust.  A constructive trust requires the trustee to return the funds she has taken to the trust.  A constructive trust can also be used to trace the funds to acquisitions by the trustee and those acquisitions or their value will be returned to the trust.

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