Can a trustee claim remainder property or any tangible property if the living Trust states that he is excluded?
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Can a trustee claim remainder property or any tangible property if the living Trust states that he is excluded?
Can a trustee change a living Trust for their benefit?
Asked on November 29, 2018 under Estate Planning, South Dakota
Answers:
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
The trustee cannot alter the terms of the living Trust. This is a breach of fiduciary duty. The trustee's duty is to administer the living Trust; not claim its assets.
Your remedy is to sue the trustee for breach of fiduciary duty and specifically conversion which is theft in a civil case. The remedy you should seek is a constructive trust which will require the trustee to return the property to the trust. If the trustee has sold the property, a constructive trust can be used to trace what was stolen and return the proceeds or the value of what was stolen to the trust.
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