What legal recourse do I have if any against a trusteewho is violating the term of a Trust?

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What legal recourse do I have if any against a trusteewho is violating the term of a Trust?

My mother had a living trust in which her home (which was paid for) was its sole asset. She died 3 years ago. My brother is the trustee of the living trust of which he and I are the beneficiary’s. The living trust stipulated the house was to have been sold upon my mother’s death but my brother decided instead to retain it as “a long term asset”. He moved his daughter and her family into the house and they are renting it with the intention of purchasing it ‘someday’. I receive some of the rent. The house has depreciated in value $100,000 since my mother’s death 3 years ago.

Asked on February 27, 2012 under Estate Planning, California

Answers:

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

Answered 12 years ago | Contributor

Sorry to hear about your mother.

The trustee has breached a fiduciary duty by not complying with the trust provisions and not selling the house.  You could sue the trustee for breach of the fiduciary duty (breach of trust).  One of the duties of a trustee is to make the trust property productive which the trustee has failed to do.  Your damages (the amount of compensation you are seeking to recover in your lawsuit) would be your share of the trust's lost income due to the trustee not selling the house and its subsequent depreciation.  Your lawsuit should also seek to have the trustee removed and a successor trustee appointed.  There may be provisions in the trust for the appointment of a successor trustee and removal of the present trustee.  If so, those provisions should be invoked and their procedures followed. 


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