Is it difficult to remove an untrustworthy trustee from a trust?
Get Legal Help Today
Compare Quotes From Top Companies and Save
Secured with SHA-256 Encryption
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
Answers:
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 7 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.
IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.