Is it difficult to remove an untrustworthy trustee from a trust?

I have 2 brothers. My mother’s will
established ‘no.2’ as trustee of her
estate. He has misappropriated 50k of
the shares of her house sales to
himself. He is also currently in charge
of a ‘special needs trust’ for brother
no.1 who now has no faith in him not to
do the same to the trust money. No. 1
wants to appoint me as the new trustee.
Is this difficult to do? What actuons
should i take to protect fhe rwmainder
of my eldest brother’s money?

Asked on September 19, 2016 under Estate Planning, Arizona


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

Answered 4 years ago | Contributor

Brother No. 2 can be removed as executor of your mother's estate for breaching his duty by misappropriating the proceeds from the sale of the house. You can sue him in probate court for conversion (theft in a civil case) and seek the remedy of having him return the stolen proceeds to the estate.  You can seek a constructive trust which will require him to return the stolen proceeds.  A constructive trust can be used to trace the stolen funds to any acquisitions and those acquisitions or their value can be returned to your mother's estate.
As for your brother's special needs trust, if the trust provides for removal of the trustee and appointment of a successor, those procedures should be followed.  If the trust is silent as to removal of a trustee and appointment of a sucessor, you can petition the court to have your brother removed as trustee and to have you appointed as successor trustee.
If funds are stolen from the trust, pursue the constructive trust remedy discussed above to require your brother (the trustee) to return the funds to the trust or acquisitions or their value to the trust.

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