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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41220
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Would below info modify your advice? I would not have charged

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Would below info modify your advice?
I would not have charged more rent than the mortgage payment. Even consider less than the mortgage payment as an option.

There are two equal beneficiaries to the Trust. Myself and the decedent's son.
Would the length of time needed to transfer the title have an effect on the equity of the Trust making the payments. It seems the beneficiary/occupant of the property is receiving an undue benefit the longer this goes on at the expense of the Trust

Thank you for your follow-up, and thank you most kindly for requesting me to assist you again.

It is not the question of the amount, it is the question of ownership--a trustee is required to maintain the property for benefit of the beneficiary and likewise make for a smooth transfer if the trust calls for it. Anything that can appear to interfere or unjustly profit one of the parties may be a violation of the fiduciary duty. Furthermore, if the trust is silent, generally the intent (unless written in an another manner) is that the assets be maintained for beneficiaries but not at the expense of the beneficiaries. In other words charging rent to a stranger who is on premises is perfectly fine since the trust and beneficiary benefits. Charging one beneficiary for living in a home that belongs to them benefits the trust but not the beneficiary, for whom the trust was created. I agree that there is an inference of an unfair benefit, but so is charging him rent when he owns the property. Now, you can point out to the beneficiary that if he is unable to make payments or assist, you as trustee would have to sell of assets that belong to both in a proportionate manner so as to cover costs, and it may come to selling the property rather than transfer it over to him if no other assets exist. That may get the son to move and take the mortgage over on his own, something you cannot compel him to do otherwise.

Good luck.

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