What Occurs if a Trustee Deviates From a Trust?
One of the primary purposes of a will or trust is to ensure that one’s assets are distributed correctly according to their wishes. Without drafting a will or trust yourself, the government will distribute your assets according to its own rules; this is why protecting your interests with an official trust can be so important.
When drafting a trust, a trustee is selected. A trustee is a person who will carry out the wishes stated in your trust after you pass away. Choosing the wrong trustee could result in the mishandling of assets. Keep reading for more information about what happens when a trustee goes against the trust.
How Can a Trustee Commit a Breach of Trust?
While some estate planning terminology is unclear, “trustee” is pretty simple. The trustee’s job is to carry out the wishes of the person who made the trust. Generally speaking, anything that the trustee does in opposition to this could be deemed a breach of trust.
So, what do you do if you suspect the trustee of a loved one’s will or trust isn’t doing things correctly? As long as you are an interested party in regard to the trust in question, you’ll be able to take legal action against the trustee.
The most effective way to do this is to consult with an estate planning attorney. They will be able to initiate the process quickly and with confidence. Typically the process will begin with your lawyer writing a letter to the trustee. They’ll request a trust accounting as well as any and all information about the trust to which you are entitled.
After this, your attorney may petition the probate court (or the circuit court) to remove the trustee from the trust. As the beneficiary or interested party, the burden of proof will be upon you. That means you will need significant evidence to get the trustee removed.
Luckily, most of the relevant evidence will likely be found during the trust accounting and distribution step. Other evidence typically includes any additional relevant documents, communication between you and the trustee, communication between relevant third parties, etc.
What Happens Next?
The probate judge will either accept or deny your petition to remove the trustee, or they may order something different.. If they grant the petition, the trustee may be removed from the trust and will no longer have the authority to distribute assets. If, however, you cannot provide enough evidence for the judge to accept your petition, the trustee may remain. You may also have to pay the other party’s attorney fees.
Make Sure You Have Experience on Your Side
Estate and trust administration can be extremely stressful. There are a lot of complicated processes, terminology, and moving parts. When it comes to something as important as a loved one’s wishes, you don’t want to leave things up to chance—or worse, leave them up to someone who will take advantage of the situation.
Kristin Waters Sullivan is an experienced estate planning and estate and trust litigation attorney and has been helping the Birmingham community plan for and secure their futures for years. Get in touch with her today to set up a consultation.