Question: My mother passed away last year. My brother and I were her only children. She drafted a trust, and she made my brother the trustee. My mother was very clear with us that she wanted her estate divided equally between my brother and me, and that’s exactly what the trust says. Prior to her death, she gave my brother substantially more money than me, helping him out with a sizable down payment to buy his house.
A few weeks after my mother’s death, my brother gave me an estimate on how much money I could expect to receive from the trust, but I haven’t received any word since then. I really need the money to pay off some of my own bills and would like to use the funds to put a down payment on my own house. It seems like he has been taking a long time to deal with everything, but I am worried that if I contest anything, he will try to cut me out. The trust says that if I contest anything, I could be disinherited. How should I proceed? Given that my mother wanted everything to be equal, will her gifts to my brother be considered in the division?
Answer: Your concern about contesting the trust is misplaced. To “contest” a trust, or a last will and testament, has a specific meaning in the law. It refers to a person challenging the validity of the legal instrument itself. If, for example, a person petitions the court to throw the trust out because the trustor lacked the mental capacity to understand what was in it, the petition would be a “contest.” The purpose of a “no contest” clause in a trust or a will is to discourage such legal action. The clause provides that if you challenge a trust or a will for certain reasons and lose, then you may lose everything you would otherwise receive in the trust.
Your inquiry, however, deals with your brother’s actions as trustee — namely, his delay in administering the trust. Addressing the shortcomings or bad acts of a trustee is not a contest at all, and it will not result in any chance of you being disinherited.
As a beneficiary of the trust, you have the right to obtain information about the administration of the trust. Call your brother and ask him directly about what is going on. He should be able to give you general information on what is in the trust, what he is doing and what he will be doing. You will want to know exactly why he has delayed the distribution.
In addition, a beneficiary has the right to demand an accounting from the trustee. An accounting is a detailed document that sets forth all the trust property in existence at the time your mother died and how much of the trust possesses now. The document will also contain schedules, which will tell you about any of the trust’s receipts and the trust’s disbursements. It should contain a chronological listing of every penny in income and every penny in expense.
You also mention that your mother gave gifts to you and your brother during her life, and you question whether you can account for those gifts in the trust distributions. Unless your mother specified in writing her desire to treat the gifts as part of the distribution, the gifts will have no effect on the distributions from the trust. Your brother would only be obligated to provide equal distributions from the present trust property.
There is no harm in speaking up to your brother and demanding he tell you what is going on. A trustee should be transparent and should keep all beneficiaries informed about what is happening. A beneficiary should not be left guessing. You have more to lose in staying silent than you do in speaking up.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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