Cedarville, OH asked in Estate Planning, Probate, Social Security and Public Benefits for Michigan

Q: Sister is abusing position as Trustee of Family Trust. Can adult brother receiving SSD be named successor Trustee?

Adult sister and brother are sole beneficiaries of Trust set up by now deceased parents.

Sister has ignored brother's requests for accounting, bank statements or fund disbursements, hasn't filed taxes since she became Trustee a few yrs ago, is allowing her children to use Trust assets (live in second family home rent free), etc. Brother has no solid proof of beginning or current balance or what she's already spent - and suspects much went for her personal gain or to benefit her children.

Brother has CP and receives SS Disability as his sole income - but lives independently, functions well mentally - manages his residence, health and personal finances, drives, helps out an elderly relative w rides and shopping.

He's rightfully concerned about what his share of Trust assets might actually still be available for his future security.

If she is removed as Trustee, is being on SS Disability a legal disqualification for him being named successor Trustee by the Courts?

2 Lawyer Answers
Kenneth V Zichi
Kenneth V Zichi
  • Estate Planning Lawyer
  • Fowlerville, MI
  • Licensed in Michigan

A: The brother isn't 'disqualified' from being a trustee because of his status on Social Security Disability for a physical condition, but some federal benefits (specifically SSI which it sounds like may not be involved here, but I'd want to be extra sure!) may be impacted by his status as a beneficiary of a trust.

Without examining all the facts it is impossible to say how that might play out, but this is NOT a 'DIY' situation. The brother needs to consult with a local Probate and disability lawyer if for no other reason than to determine what he should be doing before petitioning for a change of Trustee. Remember the 'advantage' of a Trust is that it 'avoids probate'. The only way to do what you're asking here is to open a probate case to challenge the administration of the Trust. This is not inexpensive, easy or likely to lead to future family harmony. Be sure you're entering into this with 'eyes open'. Get local legal advice and representation!

Trent Harris and Brent T. Geers agree with this answer

Joseph  Dallo
Joseph Dallo
  • Estate Planning Lawyer
  • Troy, MI
  • Licensed in Michigan

A: In Michigan, as in many jurisdictions, the following general principles apply:

Qualification as Trustee: An adult, regardless of whether they're receiving Social Security Disability (SSD) benefits, can generally serve as a trustee unless there's a specific legal reason they're disqualified. Receiving SSD doesn't automatically disqualify someone.

Trust Document: The trust instrument might have specific requirements or restrictions about who can serve as a successor trustee. Review the document closely.

Removing a Trustee: If a trustee is abusing their position, beneficiaries or co-trustees might be able to petition the court for the trustee's removal. The grounds for removal typically include breach of trust, incompetence, or a substantial change of circumstances.

Legal Implications: Before appointing someone receiving SSD as a trustee, consider potential impacts on their benefits or tax situation. This appointment might affect the amount they receive or their eligibility.

Legal Counsel: Given the complexities and potential legal implications, it's essential to consult with an estate or trust attorney to guide the process and provide specific advice.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.