I think I should be the trustee

A while back my parents established a trust. My father is no longer living. My mother is in a nursing home in Kansas. My brother, who now lives in Idaho, is the trustee of the trust. I feel that he is not doing as much as he should as trustee. I also feel that since I live closer to my mother that I should serve as trustee. What should I do?

A: That sounds like a frustrating situation. With the facts provided, however, it is difficult to provide substantial insight into addressing your question. However, perhaps some general comments will be useful.

Perhaps you may be able to resolve the situation by simply explaining your concerns to your brother. If that fails, it may be necessary to take more substantial steps.

If you decide to seek the removal of your brother as trustee, the first place to look is at the trust itself. The trust should help to define when a trustee can be removed pursuant to its terms.

Aside from the trust, Kansas has adopted the Kansas Uniform Trust Code (KUTC). The KUTC provides various grounds for removing a trustee.

These grounds range from the commission of a serious breach of trust to a substantial change in circumstances warranting removal of the trustee to best serve the beneficiaries’ interests. The KUTC also indicates that unfitness, unwillingness, or persistent failure to administer the trust may also be justifications for removing a trustee.

Perhaps the fact that your brother has now moved to Idaho and your mother is in Kansas may be one reason to remove him as trustee. Further, if he simply is not doing anything to serve your mother’s needs, that would be another reason to cite for his removal.

If your mother is of sound mental capacity, she also may simply be able to add you as a co-trustee or change the trustee designation.

If your mother is no longer able to administer her affairs and is not of sound mind, then if you are a qualified beneficiary of the trust you may be able to petition the court for your brother’s removal.

The position of trustee carries with it many responsibilities. Among other things, the trustee must administer the trust, provide proper accountings, and never engage in any self dealings.

This is a delicate circumstance to address. However, this situation is not unusual. An attorney knowledgeable in this area should be able to point you in the right direction.