My mom is not executing her trustee duties and the beneficiaries are suffering. Do I have to take her to court?

1 answer | Last updated: Nov 18, 2016
Bobby-1 asked...

Touchy situation. I am 53 and my mom, age 71, is substitute trustee of a protective trust. The trustee duties are not being executed and the beneficiaries are suffering. Her idea is that it should not be touched until the term expires. Is there another recourse besides court?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Touchy indeed. And your instinct to avoid court intervention is probably right: That would likely embarrass or antagonize your mom. But if all else fails, you may not be able to avoid it.

The first step is to give one last try to The Difficult Conversation: Sit down with your mom and the trust document and point out calmly and carefully what duties are not being attended to and exactly how the beneficiaries are suffering. Concentrate on being factual, not accusatory. Offer to lend or hire help with accounting or other tasks of administering the trust. It could just be that your mom feels overwhelmed with the task.

If that conversation doesn't resolve things, you might turn to mediation in an attempt to get your mom to do the right things according to the terms of the trust. The advantage of mediation over a court battle is that it encourages those involved in a dispute to work it out on their own with the help of the mediator. And the results can stay private and confidential, which is an added boon for many people. Most communities have Community Boards or other neighborhood groups that offer free or inexpensive mediation help. But hiring a private mediator is another possibility.

Then there's that option you don't want to hear: court. Bear in mind that courts generally only intervene in a trust's administration if there is a clear claim that the trustee has mishandled the trust property. So you would need to present good and clear evidence of that to prevail.