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My sister is the trustee of my parent’s estate. My father died but my mother is 94 and I feel she is incapacitated. The assets are to be split between my sister and I. One of the properties is still in the family Trust but the other property was transferred to my sister’s name only last year. Can she legally do this and now am I no longer entitled to half of the property?
Asked on May 24, 2016 under Estate Planning, Arizona
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 4 years ago | Contributor
Your sister's transfer of property to herself is a breach of her duty owed to the trust.
Your remedy is to sue your sister for breach of her fiduciary duty to the trust and seek a constructive trust. A constructive trust means that she will be ordered by the court to return the property to the trust. If the property has been sold, your sister will be required to return the proceeds to the estate. A constructive trust can be used to trace and recover missing assets.
Your lawsuit should also seek removal of your sister as trustee and appointment of a successor trustee if no successor has been named in the trust and/or the trust does not include procedures for removal of a trustee.
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