Legal Question in Wills and Trusts in Massachusetts
Changing Trustees
My Father formed a trust in 1955 for me and my two brothers and we've been receiving income from this trust since 1955. Father died in 1966. My older brother died last year, he was married but had no children. According to the terms of the trust, me and my younger brother should split our deceased brothers share of the income. All of the family including my sister in law agree on this. My younger brother and I will 'look after' her of course.
There is total agreement within the family on the terms of this trust but the trustee still insists on the courts to ''verifying the administrative nature of the trust''. The trust document says they have the right to do this but the estimated cost of $10,000 will be paid out of the capital. Nobody, except the trustee,wants this to happen. The family has decided that we want to change trustees for two reasons however the only provision for this appears to be if the present trustee 'goes out of business' or voluntarily gives up the trusteeship, which isn't going to happen because it's a cash cow for them. The other reason for change is the consistant reduction of our buying power due to inflation. We have proof of 'underperformance'. The trustee still refuses to address these complaints.
3 Answers from Attorneys
Re: Changing Trustees
It is not clear what your question is. If the question is, can beneficiaries demand to replace a trustee, the answer is "yes." If the question is, can the trustee make it hard to be replaced, the answer is "yes." Are there ways to do this? Yes. If you need assistance in determining the alternatives, please feel free to contact my office. We have experience on both sides of such matters.
Re: Changing Trustees
I'm not clear what it is the trustee means by "verifying the administrative nature of the trust." All trustees have a duty to administer trusts -- are you saying that the trustee is trying to argue that the trust cannot be dissolved?
The first question I have is whether you have ever demanded an accounting from the trustee. If you have not or if it has been a few years since you got one, make a formal request in writing (sent certified mail, return receipt requested so that you have proof of delivery).
Based on what you are saying, the only way you are going to be able to rid yourself of the trustee is to go to court. I would not do that until after you have a response to your demand for an account.
I strongly suggest you meet with an attorney with experience in probate litigation before going any further.
Re: Changing Trustees
First, it should not cost $10,000 for you and the beneficiaries to agree on how the disposal of your brother's interest in the Trust is passed; since there is no dispute in this matter. The Trustee does not need a court order to administer a trust it is already administering. If they are allegiing that they have separated the trust into 3 separate trusts and they need to disburse the proceeds and can't do that without a court order, that may be true.
If however there is no dispute between your brother's heirs, then it should not cost $10,000 to get such an order. I am unclear as to the size of the Trusts, but it sounds like they are significant and I suggest you contact an attorney to review the Trust agreement and to advise you with respect to your rights including removal of the Trustee.
Second, you should have an accounting each year and see how the Trust is performing and being administered. If the Trust has been significantly underperforming their may be grounds to remove the Trustee.
Please feel free to contact me if you have additional questions.
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