Brother using mother's funds to court his new wife

Dear Len & Rosie,

Seven years ago my mother made a trust to take care of her needs if she became unable to do so herself. She named my brother and me as trustees.

Four years ago my brother divorced his wife and immediately remarried. He moved his new family into mom’s home and put her in a nursing home. Since then he has not bothered to pay mom’s taxes and insurance. He even cashed in our mother’s $6,000 burial fund to court his new wife and pay for his divorce. My mother’s care is covered by Med-Cal. My brother keeps a small portion of mom’s retirement income each month. Everything else goes to the nursing home. My mother has nothing.

I am fearful of confronting my brother. He is an abusive alcoholic and is impossible to reason with. Every time I try to approach him he has some crazy interpretation of why he is doing the “right thing” for mom. Please advise me of what I can expect at the time of my mother’s death, and what I can do now to protect my interests.


Dear Katie,

Your situation is disturbing. Unfortunately, it is not unique. Some children openly salivate when they are handed the keys to the larder. Your brother probably thinks he can do anything he wants to with your mother’s assets. On top of swiping your mother’s burial fund, he probably pays no rent while living in your mother’s home. He should be paying at least all of the property’s expenses, especially because your mother must pay all of her monthly income except $35 to the nursing home as her Medi-Cal share of cost.

You need to do something about this, not just to protect your share of the trust, but also to protect your mother and any other beneficiaries of the trust. As a trustee, you can be held personally responsible to the beneficiaries if you allow your co-trustee to enrich himself with trust assets. If you and your brother are the only beneficiaries, then only your interest in the trust is at stake, but we wouldn’t be surprised if your brother procured atrust amendment leaving everything to him. For all you know, the property could already be in his name.

If your mother is mentally competent and the terms of the trust allow it, she could amend the trust to remove your brother as a trustee or just simply fire him. She may also be able to revoke the trust and make a new estate plan. If your mother has lost her mental capacity, or if she is unwilling to do anything to stop your brother, you can petition the court to remove your brother as a trustee. If you can prove what you say in your letter to the judge’s satisfaction, the court should remove him as a trustee.

The more you wait, the more your brother will be entrenched in your mother’s home. While it may not be easy, it’s better to do something about this now before there’s nothing left.

Len & Rosie