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J. Warren
J. Warren, Attorney
Category: Estate Law
Satisfied Customers: 2228
Experience:  Experience in estate planning including wills, trusts and succession planning.
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My father set up a living trust with us 5 children many years

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My father set up a living trust with us 5 children many years ago. he is now in assisted living facility. I am co-executor with my youngest brother and handle fathers expenses. My 2 other brothers and a sister live in fathers house. Fathers house must be sold to pay an enormous debt and his expenses. One brother living in his house was left responsible for maintenance upkeep and utilities of the property. He now will not leave the premises. He has hoarded so much stuff on the premises. He is not doing anything to move the stuff and move out. The other 2 siblings don't real have anything there but believe as long as father is alive they can stay. But now the brother with the property responsibility has come under financial trouble. He may be bankrupt and have debt collector calling him. The power and utilities have now been shut off and the property is falling into disrepair. Discussions have been had with no results. What can I and my co executor brother do to solve this impasse. We are also concerned that the one brother is destroying the fathers estate. Are all us siblings liable if one creates a liability or debt. Also I believe theres a clause in the Living Trust that Father is responsible for upkeep of the property. It may also be such the one brother may not be mentally capable of moving and managing his own home.

Hello and Welcome! Thank you for allowing me to be of service to you. Please note: (1) this is general information only, not legal advice; and (2) I will provide you with honest information and not necessarily to tell you might be hoping to hear.

I am sorry to hear about your situation. If a house is titled in the the name of the trust and not each child a joint tenants or tenants in common, the trustee or co-trustee's have the authority to evict a person living there that is not paying rent and causing waste.

If title is not vested in each child and each are merely beneficiaries of the trust, a beneficiary does not (unless granted by the trust agreement which would be rare) have a right to reside in the premises while creating waste. The brother could be held liable for causing the waste regardless as could all the siblings and the executors/trustees for allowing the occupants to cause waste to the property.

An option the trustee's have in this case is to treat the brother as a tenant and deliver him a notice to quit for non-payment of rent. If he doesn't leave the premises you will need to bring a forcible entry detainer action to forcibly evict him from the premises and to remove the property.

Another option would be to have the brother declared incompetent and by assigned as his parent guardian thereby giving you legal authority to move him out of the premises. This is not a popular option nor an inexpensive and time efficient method, but it is an option.

I apologize that this was probably not the answer you were hoping to receive. However, it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information.

All my best & encouragement.

Please note that you are asked to rate my courtesy and professionalism, and not whether the answer supports your legal position. I only receive credit when rated 3 or higher. If for any reason you feel that a low rating is appropriate, please first give me the opportunity to address your concerns by clicking the "reply" tab.

All states have intricacies in their laws and any information given is simply information only and specifically is not intended to be, nor does it constitute, legal advice. This communication does not establish an attorney-client relationship with you.


 

Customer: replied 3 years ago.

Thank you
This is helpful. Just to clarify the first part you say if the house is titled to the trust and not each child... then follow with... if the title is not vested to each child, and each are beneficiaries. isn't that the same thing? In our situation our lawyer says if the property is sold, each child would get a check divided equally from the total sale.

Thank you for following up. If the trust is a revocable living trust and the house is titled in the name of the trust (meaning it is an asset of the trust) the distribution of the assets or process from the sale of those assets do not occur until the settlor/trustor (your father) of the trust passes away.

Once death occurs the trust beneficiaries are entitled to the distributions from the trust not before that. The settlor/trustor is free to revoke the trust prior to death so a beneficiary is entitled to assets only after death occurs.

I hope this helps, if not please let me know.

Please note that you are asked to rate my courtesy and professionalism, and not whether the answer supports your legal position. I only receive credit when rated 3 or higher. If for any reason you feel that a low rating is appropriate, please first give me the opportunity to address your concerns by clicking the "reply" tab.

All states have intricacies in their laws and any information given is simply information only and specifically is not intended to be, nor does it constitute, legal advice. This communication does not establish an attorney-client relationship with you.
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