Legal Question in Wills and Trusts in California
My Father and Mother had a Revocable living trust which my mother was the trustee on. She later was diagnosed with Alzheimers and Dementia but does relatively well in her long-term memory. My older brother and I were made executors of the trust. Him first and me second if he was unwilling or unable to fufill his obligations. He first caused her to resign as trustee of her own trust and then sold her house. She lived two and 1/2 years with me after that. I have another brother also. The proceeds from the house were supposed to be divided equally among us. He took the money out of the bank it was in and hid it somewhere. He won't tell us and I'm wondering if I apply for conservatorship of my mother who now resides with my brother, what happens at her death. Can the trust be dissolved because of all the foolishness that's happened and can I give up the portion which would have gone to me? I no longer want anything to do with this mess. Would the funds go back to her for her care. I do not feel she has been taken care of or made to be happy like the original intention of the trust was.
3 Answers from Attorneys
Your story is all too familiar tale. Your brother has potentially committed financial elder abuse and breached his fiduciary duty to your mother and successor beneficiaries. However, what you want is unclear. You want to petition for conservatorship but also disclaim your potential inheritance.
Given the delicate nature of what has happened, I suggest you contact a local elder law/probate attorney for consultation. You can take the time to lay out what has and is going on. The attorney can then provide you with tailored advice for your situation.
Can't say for sure without seeing the document, but it is unlikely that the trust authorizes the Trustee to distribute the money to your mother's children as long as she is alive. Most likely, the proceeds from the sale of the house should be used only for your mother's support and care during her lifetime. If your brother is not following the terms of the trust, he is in violation of his fiduciary duty. I agree with Mr. Jordan's advice.
One other option to you is to report the situation to Adult Protective Services, the Police or Sheriff, or the Elder Abuse prosecutor at the District Attorney's office. If your brother has taken your mother's funds for himself without having been granted the authority to do so, he could be prosecuted for Elder Financial Abuse. Just understand, however, that if you refer the matter to the authorities, you can't turn them off. The decision as to whether or not to prosecute your brother, if the evidence supports it, won't be under your control.
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