Regardless of whether you need to appoint someone to be your own estate's executor or…
A trust is attainable and beneficial to anyone, not just the wealthy. You want to keep your affairs private and stay out of probate court? Maybe you have stepchildren? You want to leave money to your favorite charities? Or you own a small business and you are concerned about liability. Perhaps you have a child with special needs. You have an elderly parent who might need government benefits. And so on. There are lots of situations where a trust is just the thing.
In an ideal world, a trust runs like a well-oiled machine. The creator of the trust (also known as Grantor, Trustmaker or Settlor) is even-handed and fair in where he or she wants the money to go. The recipients of trust funds – the beneficiaries – want the best for all, including themselves. The trustee – the person entrusted with managing the money in the trust – is conscientious and responsible. She or he invests wisely. She provides beneficiaries with regular accountings of how those investments are doing. She pays beneficiaries earned interest right on time. When the trust has served its purpose, she pays out assets and winds up the estate.
That’s the ideal world. Not everybody lives there, unfortunately. Individual trustees can be inexperienced, overworked, overwhelmed, intentionally uncooperative, or even abusive or dishonest. Beneficiaries can become anxious and suspicious, with or without reason. And grit gets in the gears.
If you are a beneficiary who is concerned that the trustee is not living up to her duties, we suggest a stepped approach. Start by being nice and assuming the best intentions. Specifically identify what is troubling you. Try to sit down with the trustee to discuss your concerns. Disagreements may turn out to be misunderstandings that can be worked out amicably.
If you do not have a copy of the trust document, ask for it. Do not believe what you are told about what the trust says. You as beneficiary have the right to read the document and to make sure that what you think you are entitled to is in fact what you are entitled to.
Beneficiaries have the right to know where trust funds have been placed, how much income the funds have earned, and how much the trustee has spent on expenses and commissions. If your trustee has not provided you with an accounting, ask politely in writing. Request that the trustee responds within a specified reasonable time. If your request is simple – for example, you are only asking for a copy of the trust document – that time could be short. If you want an accounting, allow the trustee more time to calculate expenses and reconcile accounts.
If all goes well, the situation may be resolved at that point.
If not, though, act immediately. Don’t merely hope things will take care of themselves. Your time to go to court is limited and you may be penalized for not acting promptly. Call an experienced estate planning lawyer. General practitioners may be good negotiators, but they are probably unfamiliar with current trust or estate law. You need an attorney who has extensive experience with trustees or executors who have mishandled an estate or otherwise breached their duties. And remember – if you are a beneficiary, you need your own attorney, not the attorney who drafted the trust.
You and your attorney can then choose the optimal way to reach your goals. Maybe simply a letter from the attorney to the trustee will do the job. If it doesn’t, though, it may be time to go to court. Your attorney will advise you.
But what if you think the trustee is actually stealing? Misappropriating your inheritance? Isn’t that a crime? A police matter?
Yes, but. The police won’t pursue a case unless the trustee has actually embezzled or absconded. Otherwise, if your trustee has invested funds recklessly, or lost money, or won’t communicate with you, those are civil disputes that are resolved in probate court, not criminal court. The probate judge can force uncooperative trustees to act, or, if necessary, may remove the trustee altogether if he or she is unfit or the situation otherwise warrants.
In sum, an individual serving as trustee is responsible to communicate honestly and openly with beneficiaries, to gather and invest property of the estate, and to account for property that passes through. That can be a big job, so allow your trustee some latitude if possible. But life being what it is, drama and chaos can break out, especially if familial relationships aren’t what they could be wished-for.
If you find yourself in that situation, we would be happy to talk with you about how we could help provide support and expertise, to move toward a happier solution. We hope you found this article helpful. If you have questions or would like to discuss a personal legal matter, don’t hesitate to reach out. Please contact our office at (212) 920-6371.