Dear Len & Rosie,
My mother has a trust. I am her sole successor trustee. I have two brothers and a sister. My mother is leaving 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 mother’s property? How difficult is it to change it the way I see fit? This is really bothering me because it’s just not fair. I feel all of her children should be treated alike.
Your plan won’t work unless nobody cares what you do as trustee, which is hardly ever the case. You’re job is to marshal your mother’s assets and divide and distribute them to the beneficiaries named in the trust after paying off your mother’s debts and taxes.
The reason it won’t work is that you are obligated to provide a notice to all of the trust beneficiaries under California Probate Code section 16061.7 within sixty day of your mother’s death. This notice spells out that each recipient is entitled to a copy of the declaration of trust. You can’t hide it, because your brothers and sister aren’t going to take it lightly if you claim they don’t need a copy. One of them, at least, will see a lawyer who will notify them of their rights.
The rule to remember is simple. You can give away your money, but giving away other people’s money without their consent is something for which you may be held personally responsible. When you become trustee, you will take on a fiduciary duty to each of the beneficiaries, including your cousins and the church. 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, and they will, they can sue you. If they do, they will definitely win. That means your share of the trust will wind up going to your cousins and the church instead of your brother’s share.
You should also think about your mother’s wishes. She may be entirely justified in leaving your brother nothing. Maybe your mother wouldn’t mind so much that your brother smokes marijuana if he bothered to keep in touch with her. If he isn’t acting like a member of the family then why should your mother treat him like one?
Remember, it’s your mother’s money, not yours. The only valid definition of what’s right and what’s fair is the one in your mother’s 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