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Elderlaw: 04/15/2014

Elderlaw Advocates

Dear Len & Rosie,

My mother has a revocable living trust. I am her sole successor trustee, and Iíll take over after she dies. I have two brothers and a sister. My mother wrote her trust to give my younger brother only $1, because he was once convicted of marijuana possession and he never calls or visits. She thinks he is still a dope-smoking pothead. What would have been his share is to be divided up among my cousins and the church.

As the trustee after my mother dies, am I able to ignore her wishes and give my brother his fair share of my motherís property? How difficult is it to change it the way I see fit? This is really bothering me because itís just not fair. I feel all of her children should be treated alike.


Dear Suzanne,

After your mother dies it would be very easy for you to divide up her property the way that you think is fair, instead of the way that the trust says. After all, you will be the trustee when your mother is dead. Trusts are not public documents. They are not recorded anywhere. As long as your cousins and the church do not know what the trust says, no one will be there to stop you. Do not do this, even though you might be able to get away with it. Feel free to give your brother part of your share. Donít give away other peopleís money without their consent.

If they were ever to find out, you would be in big trouble. When you become trustee after your mother dies, you will take on a fiduciary duty to each of the beneficiaries of the trust, including your cousins and the church. You will owe them a legal duty to administer and distribute your motherís assets in the manner that the trust provides. If you ignore the terms of the trust and divide everything in the manner you believe to be fair, you will commit a breach of that duty.

If your cousins and the church ever find out about it, they can sue you. If they do, they will definitely win and you will be held personally responsible for the money they should have received, plus interest. And since your brother may have then already spent his ill-gotten inheritance, the money is going to come out of your pocket.

You should also think about your motherís wishes. She may be entirely justified in leaving your brother nothing. Maybe your mother wouldnít mind so much that your brother smokes marijuana if he bothered to keep in touch with her. If he isnít acting like a member of the family then why should your mother treat him like one?

Remember, itís your motherís money, not yours. The only valid definition of whatís right and whatís fair is the one in your motherís heart. As long as she can make her own decisions, your mother can leave her property to whomever she sees fit. If you want to change this, try to reconcile your mother with her prodigal son.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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