Submitted by Anonymous on Fri, 08/20/2010 - 12:12
A work colleague has a situation where her father died 2 years ago, leaving his estate in an irrevocable trust. The trustee, girlfriend at the time, has still not distributed the assets (a house and liquid assets) to the sole beneficiary - deceased's child - nor has she filed any statements.
Is there a time limit to moving forward? Does this have to be probated? Shouldn't there have been some hearing after the death?
What are the rules in this kind of case (please feel free to share links)?
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Editor's Response
Follow this link to a similar question about forcing trustee to take action on trust. If I were the beneficiary, I would immediately contact a Massachusetts attorney and have her look into this matter. If there are no probate assets, then the estate does not need to be probated.
Time Limit
Assets held by a non-testamentary trust are not probate assets, and therefore they are not generally subject to the probate process. So it is unlikely that the girlfriend had any obligation to file anything with the probate court. Even though the trustee is not subject to the formal probate process, I would have expected some sort of "family meeting" by now. I always encourage my trustees to maintain open lines of communications with the beneficiaries.
Two years is a long time to be in the dark about the administration of the trust - particularly if you are correct in your assessment that your co-worker is the sole beneficiary. Your co-worker can and should request a copy of the trust. The trust document ALWAYS controls the trustee's actions - so start by reviewing the trust to determine what instructions the father gave to the trustee. My guess is that the girlfriend has a life interest in the trust, and that your co-worker has a remainder interest. That would explain that lack of distributions from the trust.
Without more information about the trust, I cannot really provide any specific guidance. If the girlfriend has not acted properly, then she can be removed as trustee - and held accountable to any beneficiaries damaged by her actions. As is so often the case, this is a tricky area of law, and you may want to consult with an attorney who specializes in these issues.
Attorney Peter Bernardin
disbursement from trust, accounting for same
The prior comments capture the basics of the matter. There is one additional area that your friend should consider. Most trusts, revocable or irrevocable, in Mass. have undisclosed beneficiaries. That simply means that the relationships of the beneficial owners will not be apparent from the trust itself. The beneficiaries are set forth in a schedule of beneficial interests which is a separate document from the trust. It is 'filed' with the trustee. If your friend is a beneficiary, she is entitled to see this document. It will generally describe 'who owns what and when they are entitled to it'. Many trusts have a life or present beneficiary and a successor beneficiary who takes either after death or after a term of years. This document will be the foundation of your friends rights and the responsibilities of the trustee to provide income or not over time. If the body of the trust is to be presently distributed to your friend after the father’s death, then it is long overdue. If there is an intervening gift to someone else (the girlfriend?) Then her inheritance may be delayed for whatever period her father set. In any case she should request a copy of the trust and a copy of the schedule of beneficial interests. If the trust owns real estate, there may be a full copy of the trust on record at the registry of deeds for the county in which the land lies. These records are public and on the web. It should be a matter of a few minutes to check. Final suggestion, call a Mass estate planning attorney to assist you. If the girlfriend is abusing her position, then you will need to bring an action to compel an accounting and to force disgorgement of the property.
Kevin W. Gaughen, Gaughen, Gaughen, Lane & Hernando - gaughenlane.com ‘providing estate planning and litigation services since 1950'