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Removal of trustee(s)

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P

Pix

Guest
What is the name of your state? new york

to try and make a long story short, my husband has for the last 9 years, been taking care of his dad who died about 6 weeks ago. his trust and will dictates that everything is divided equally between his 4 children. his dad’s trust named his sister as trustee and one of his brothers as successor trustee. my husband and another brother are very concerned that they will not be able to impartially handle the trust, and/or in good faith.

the sister is showing extreme partiality to the one brother, who by the way, was estranged from the family for about 8 years and just recently resurfaced. the house was left in the trust and we understand she is responsible for handling matters pertaining to the estate. but one thing she has done that we find unjust is that she is allowing one brother (the one named as successor trustee) to come and go as he pleases to the house (he was recently given a key), but not allowing the other two brothers access unless she is there. she lives in florida and they are never told when she may be there. my husband used to have a key (as he took care of his dad for 9 years before the other brother resurfaced), but she went and had the locks changed. changing the locks is not the problem, but the fact that one brother is allowed to do what he pleases without any supervision is. additionally, this brother also lives out of town, but has often been staying at the house with his children.

also, since his dad’s death, his sister has not told either of the other brothers anything about what is going on. they had to call his dad’s lawyer to even find out if there was a will or trust, and to get copies of same. the only thing they have received is a waiver of process; consent to probate paper to be signed (which they have not yet signed).

big question is, can the present trustees be removed and have someone outside the family appointed to be the trustee? they know it might be costly, but are willing to pay to protect the estate. i have read that most attorneys will probably say it’s a difficult thing to do, but we feel strongly that it may be the right thing to do.

the estate we believe is close to a million dollars. as far as exactly what’s in the trust, we are not sure. we know the deed to the house was changed to the trust, but as far as anything else, when we got the trust from the lawyer, it says to look at schedule a for a list of assets in the trust, but that is blank. my husband’s brother was told that will be available at time of distribution? that doesn’t sound right either.

basically, we want a fair and expeditious handling of the estate and would like an appointed trustee. is this possible?
 


ALawyer

Senior Member
Nothing you have said thus far would seem to entitle you to replace the trustee. Absent some evidence of fraud, waste, self-dealing, or, or at least something more than simple negligence, courts will not replace trustees and over-ride the choice of the deceased. Restricting access to the home is not misconduct. Even permitting just one beneficiary to stay in the house could easily be justified by the lawyer for the trustee.

My experience has been when normally non-suspicious people become suspicious, there really is something to be concerned about only half the time. (If the people are relatively paranoid, it’s more like 2% of the time.)

Replacing the trustee is not something you would stand any chance of success accomplishing on your own, so you’d need to hire a lawyer. The process needed to replace a trustee is likely to be VERY expensive, and especially at this stage it is also is likely to be futile.

A far better approach might be to retain a lawyer (together with your other excluded sibling) to look out after your interests in the proper administration of the trust and the estate.

The very fact that there is a lawyer present, looking out for a party's interests usually causes anyone thinking about doing anything underhanded to at least think twice. More importantly, it also can serve as a notice to the lawyer for the trustee that s/he’d better look closely at what the client is doing, and will serve to restrain the client as well as make sure that the t’s are crossed and the i's dotted. Also, good lawyers often extend each other professional courtesies, and thus may be able to obtain with a phone call what would otherwise take a battle.

If the lawyer’s oversight does not produce the results you are seeking, at least the lawyer will be in a position to suggest other action that may be needed. If that’s the way things are headed, the lawyer would also be in a position to help build a case for the result you are seeking, here removing the trustee. A judge is far more likely to be persuaded the other side has been unreasonable – and is likely to continue that path – if there has been a professional involved. Otherwise the other side’s argument that this is simply a family feud motivated by envy and spite would carry the day.

(Of course it would be less than candid to fail to warn you that there are some lawyers -- fortunately a relatively tiny number – that aggravate rather than calm situations, and for whom the mere presence of another lawyer serves like a red flag to a bull.)
 

Dandy Don

Senior Member
At least talk to a trust lawyer to find out if New York State Law allows a trust beneficiary to request a copy of the trust and an accounting.
 

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