Trusts and Trustee Duties

Dear Len & Rosie,

My mother has a revocable living trust. I am her sole successor trustee, and I'll take over after she dies. I have two brothers and a sister. My mother wrote her trust to give my younger brother only $1, because he was once convicted of marijuana possession and he never calls or visits. She thinks he is still a dope smoking pothead. What would have been his share is to be divided up among my cousins and the church.

As the trustee after my mother dies, am I able to ignore her wishes and give my brother his fair share of my mother's property? How difficult is it to change it the way I see fit? This is really bothering me because it's just not fair. I feel all of her children should be treated alike.

Suzanne

Dear Suzanne,

After your mother dies it would be very easy for you to divide up her property the way that you think is fair, instead of the way that the trust says. After all, you will be the trustee when your mother is dead.  Trusts are not public documents. They are not recorded anywhere. As long as your cousins and the church do not know what the trust says, no one will be there to stop you. Do not do this, even though you might be able to get away with it. Feel free to give your brother part of your share. Don't give away other people's money without their consent.

If they were ever to find out, you would be in big trouble. When you become trustee after your mother dies, you will take on a fiduciary duty to each of the beneficiaries of the trust, including your cousins and the church. You will owe them a legal duty to administer and distribute your mother's assets in the manner that the trust provides. If you ignore the terms of the trust and divide everything in the manner you believe to be fair, you will commit a breach of that duty.

If your cousins and the church ever find out about it, they can sue you. If they do, they will definitely win and you will be held personally responsible for the money they should have received, plus interest. And since your brother may have then already spent his ill-gotten inheritance, the money is going to come out of your pocket.

You should also think about your mother's wishes. She may be entirely justified in leaving your brother nothing. Maybe your mother wouldn't mind so much that your brother smokes marijuana if he bothered to keep in touch with her. If he isn't acting like a member of the family then why should your mother treat him like one?

Remember, it's your mother's money, not yours. The only valid definition of what's right and what's fair is the one in your mother's heart.. As long as she can make her own decisions, your mother can leave her property to whomever she sees fit. If you want to change this, try to reconcile your mother with her prodigal son.

Len & Rosie