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

UPDATED: Nov 29, 2018

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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


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

Answered 4 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.

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 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.

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