what is an attorney to do if trustee is incompetent

If you suspect, based upon the trustee’s actions that he may be mentally incompetent, it is important to act quickly. The assets of the trust are at stake. The following are six steps to take when you find yourself in this situation: Contact an experienced attorney. Court supervision is typically not necessary during a trust administration.

Full Answer

What happens if a trustee is declared incompetent?

For example, if the trustee is declared incompetent because of mental illness, develops Alzheimer's disease or becomes physically unable to carry out their responsibilities as trustee, then the successor would take over. Trust documents are meant to be part of a comprehensive estate plan.

What are the signs of incapacity of a trustee?

Generally, forgetfulness or being overly trustworthy with unknown persons, may be the early signs of incapacity. Particularly with trustees who are elderly, the early onset of Alzheimers, Parkinsons, a mild stroke or Demetia can be the reason. So too, an internal injury resulting from a fall can be the genesis of mental impairment.

What are the responsibilities of a trustee?

The responsibilities of a trustee are to handle your affairs in accordance with the terms of the trust agreement. However, a trustee who is older may suffer from memory problems and may ultimately be unable to act in their capacity as a trustee.

What happens if a trustee becomes incapacitated before the estate closes?

However, one of the issues that is seldom discussed is what to do if your trustee becomes incapacitated before the estate is closed out and the purpose of the trust has been accomplished. The responsibilities of a trustee are to handle your affairs in accordance with the terms of the trust agreement.

Can a trustee be sued for negligence?

Negligence can constitute a breach of fiduciary duty because trustee misconduct can include a range of conduct, both intentional and unintentional (or negligent), committed by a trustee that results in loss to trust assets. Trustee malfeasance can be grounds for removing a trustee or filing a suit against them.

What makes a trustee unfit?

Sometimes the language of the trust sets forth the grounds for establishing incompetence. If not, case law in California requires evidence that a trustee is substantially unable to resist fraud, duress, menace or undue influence or is no longer able to provide for his personal needs, such as food, shelter and clothing.

How do you fight a trustee?

An heir-at-law to the creator of the trust (the settlor) who is disinherited or disadvantaged also may file a trust contest. If you have standing, then you can petition the courts and seek the justice you deserve as a rightful heir or trust beneficiary.

What happens if a trustee fails?

If a trustee has breached their fiduciary duty, a beneficiary has several options: Contact an attorney to help communicate with the trustee. This can involve requesting a trust accounting and distribution through your attorney. The lawyer can also advise on expectations and help resolve disputes with the trustee.

Can a trustee remove a beneficiary from the trust?

In most cases, a trustee cannot remove a beneficiary from a trust. An irrevocable trust is intended to be unchangeable, ensuring that the beneficiaries of the trust receive what the creators of the trust intended.

Can the trustee of a trust be changed?

How To Change Trustee On Revocable Trust. Trustees can be easily changed on a revocable trust since the trust instrument's grantor is still alive and in charge, and changing the trustee is as simple as adding an amendment to an existing trust. You can write a new Trust and nullify the old Trust.

Can a trustee be held personally liable?

Trustees must follow the terms of the trust and are accountable to the beneficiaries for their actions. They may be held personally liable if they: Are found to be self-dealing, or using trust assets for their own benefit. Cause damage to a third party to the same extent as if the property was their own.

How long does a trustee have to notify beneficiaries?

Several states require you to send a notice to all trust beneficiaries within a certain time after you take over as successor trustee of the trust. Most states give you 30 or 60 days to send this initial notice.

What can invalidate a trust?

Some of the most common reasons trusts are invalid include:Legal formalities were not followed when executing the trust instrument.The trust was created or modified through forgery or another type of fraud.The trust maker was not mentally competent when they created or modified the trust.More items...

When a trustee fails to act properly this is called?

When a trustee fails in his or her duties, it is referred to as breach of fiduciary duty. Breach of fiduciary duty can come in many forms.

What action can a beneficiary take against a trustee if they misuse the assets within the trust for personal gain?

Beneficiaries are entitled to demand financial information showing how the trust fund has been managed. If the trustee refuses to provide this, the beneficiary can apply to the court for an order compelling the trustee to produce it.

What is fiduciary breach?

Breach of fiduciary duty occurs when someone has a responsibility to act in the interests of another person and fails to do so.