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Not Following Wishes in Revocable Trust

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abtlady

Guest
IL
Are there any ramifications in not following the wishes that are stated in a revocable living trust? Mother in law's trust is split mainly three ways but with various other monies given to the church etc. My husband and his brother are co-trustees upon death. Hubby wants to follow the wishes in the trust, brother does not. Help!
 


ALawyer

Senior Member
Let's first consider what the Trust actually does. Does the Trust merely express "wishes" or does it provide binding instructions?

If the Trust mandates X, and someone wants to do Y, disregarding the terms of the Trust and doing Y would be a breach of the Trust and Trustees who authorize or approve doing Y would be personally liable under nearly all circumstances. BUT if the Trust expresses mere wishes and leaves it to the Trustees' discretion, there would be no binding legal obligation to follow the Trust Maker's wishes.

Very often things may have changed, the value of the assets in the Trust may have fallen, and there is a lot less money, or a far different situation, that the Trust Maker anticipated when creating the Trust and offering suggestions. Blindly following them WHEN IT IS UP TO THE TRUSTEES' DISCRETION makes little sense in such circumstances.

For example, if the Trust Maker said I'd like to leave $1 million to be divided up among the following X charities, and told the Trustees she hoped most of it would go to the local Mosque, the Trustees could well decide that instead of giving anything to the Mosque they would choose an alternate charity and give the money to the 9-11 Fund. But if the Trust Maker said $1 million to the Mosque and the rest to my children, and at the time she made the Trust there was $10 million in assets total, largely invested in shares of Enron, WebVan and Pets.com, and at the time of her death the value of the Trust was only $1,010,000, the Trustees could not decide on their own that instead of the $1 million going to the Mosque all the money should go to the children because the value of the entire Trust had fallen.
 
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abtlady

Guest
Binding Trust Instructions Not Being Followed

The trust has binding instructions. What legal trouble would a trustee be in if he did not follow the instructions in the trust? All assets in the trust are status quo. Thanks!
 

dmode101

Member
As Alawyer pointed out, the trustee(s) can be held personally liable. Binding instructions are not optional. In addition, I might point out that enforcement of charitable gifts can enforced civilly, and possibly criminally, by the Illinois Attorney General's office.
 

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