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Taking legal action to remove a trustee

When most people think about estate planning, the document known as a last will and testament likely comes to mind. While a will can be used to convey one's wishes with regard to the ownership of personal belongings and the disbursement of assets, a trust is typically a better option for people who wish to avoid probate, leave property to young children and protect assets from creditors.

When establishing a trust to leave assets and property to heirs, an individual must also name a trustee. Upon the death of the trust's originator, the trustee is responsible for managing and disbursing the trust's assets per a trust's terms. The duties associated with being a trustee can be challenging and there may be times when a trustee and a trust's beneficiaries don't agree about how assets are being invested, managed or distributed.

In cases where a beneficiary believes that a trustee is not fulfilling his or her duties, a beneficiary may choose to petition the court and request a trustee’s removal. A beneficiary must be able to provide compelling evidence to justify a trustee's removal.
Reasons commonly cited include assertions that a trustee failed to comply with the trust’s terms. Upon assuming the role of trustee, an individual agrees to carry out the specific terms as dictated by the trust's originator and this includes acting in the best interest of the beneficiaries.

At times, personality or other conflicts between a trustee and the trust's beneficiaries may also warrant a trustee's removal. A beneficiary who believes that a trustee is acting in a hostile manner or is not effectively communicating may petition the court for his or her removal.

Lastly, a beneficiary who believes or has proof that a trustee is mismanaging trust assets may also choose to take legal action. This includes cases in which a trustee's actions or failures to act result in the "waste or devalue" of a trust's funds.

Winning the removal of a trustee can be challenging. Therefore, beneficiaries or parents of beneficiaries are advised to hire an estate planning attorney who can provide advice and fight to win the removal of a trustee.

Source: FindLaw.com, "5 Reasons to Remove a Trustee From Your Trust," Brett Snider, Oct. 29, 2013

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