Trusts are not exclusive to the wealthy, anyone can benefit from setting up a trust. Do you want to keep your affairs private and stay out of probate court? Maybe you have stepchildren? Do you want to leave money for your favorite charities? Or you own a small business and you\u2019re 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.<\/p>\n
In an ideal world, a trust runs like a well-oiled machine. The creator of the trust is even-handed and fair in where he wants his money to go. The recipients of trust funds \u2013 the beneficiaries \u2013 want the best for all, including themselves. The trustee \u2013 the person entrusted with managing the money in the trust \u2013 is conscientious and responsible. She 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.<\/p>\n
That\u2019s 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.<\/p>\n
If you are a beneficiary who\u2019s 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\u2019s 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.<\/p>\n
If you don\u2019t have a copy of the trust document, ask for it. Do not believe what you\u2019re 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.<\/p>\n
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 \u2013 for example, you are only asking for a copy of the trust document \u2013 that time could be short. If you want an accounting, allow the trustee more time to calculate expenses and reconcile accounts.<\/p>\n
If all goes well, the situation may be resolved at that point.<\/p>\n
If not, though, act immediately. Don\u2019t 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 trust-and-estate lawyer. General practitioners may be good negotiators, but they are probably unfamiliar with current trust-and-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 \u2013 you need your own attorney, not the attorney who drafted the trust.<\/p>\n
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\u2019t, though, it may be time to go to court. Your attorney will advise you.<\/p>\n
But what if you think the trustee is actually stealing? Misappropriating your inheritance? Isn\u2019t that a crime? A police matter?<\/p>\n
Yes, but. The police won\u2019t pursue a case unless the trustee has actually embezzled or absconded. Otherwise, if your trustee has invested funds recklessly, or lost money, or won\u2019t communicate with you, those are civil disputes that are resolved in probate court, not a criminal court. The probate judge can force uncooperative trustees to act, or, if necessary, may remove the trustee altogether if she is unfit or the situation otherwise warrants.<\/p>\n
In sum, an individual serving as trustee is responsible to communicate honestly and openly with beneficiaries, gathering and invest property of the estate, and to account for the 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\u2019t what they could be wished for.<\/p>\n