Is he able to hire his own attorney and change the provisions of the family trust?

Question

My father passed away recently and my brother is executor. I feel he may not be trusted to carry out the terms of the trust.

Alexis Singletary · Answer

The short answer is "no" under the facts that you've noted, although an "executor" is different than a trustee in terms of the legal processes (executor is probate process; non-probate family trusts have trustees).  However, both an executor and trustee are tasked with the fiduciary duty of carrying out the terms of the document with which they are charged.  If there is a family trust and your brother is Successor Trustee now that your father has passed, in a typical trust, I have not seen trust terms that would allow brother to change the terms as a child-successor trustee when both parents have passed away.

Edwin K. Niles · Answer

Yes, he should have an attorney.  No, he cannot change the trust now, and no lawyer is going to risk his license to try such a thing.

Nathan Wagner · Answer

He can certainly hire his own attorney. Whether or not he can change the terms of the trust depends upon the current terms of the trust. The trust might give him the power to make certain changes to the provisions of the trust or to exercise his judgment about how to use his powers as trustee. You should show the trust to a local probate attorney and discuss your concerns about your brother acting as trustee.

Brian Haggerty · Answer

Assuming you are in Oregon, he will be required to keep you informed of his progress administering the trust. For starters, get a copy of the trust document; I strongly encourage you to hire your own attorney to assist you. The cost of being represented is much, much less than the cost of watching your inheritance go to a ruthless family member, which happens all the time with trusts.

James Chandler · Answer

Once the trustor is deceased the trust cannot be changed.

James Weiner · Answer

One your dad died his trust became irrevocable and the trustee has to follow its terms. If you do not trust him file a motion for the court to oversee his administration of the trust OR to replace him as trustee.

Victor Waid · Answer

No to your question, as the death of the father made the terms of the trust irrevocable and not modifiable; be sure you obtain a copy of the trust and analyze it as to the legal effect of the provisions; if you don't want to do that, then suggest you obtain a probate/trust beneficiary lawyer to represent you, which may be the safest course of action for you.

Norman Green · Answer

He must hire his own attorney.  Unless it states otherwise, he is not entitled to change the terms of the trust or will.  You are entitled to a copy of the trust documents.  You should probably hire your own attorney to address your problems and discuss any questions about the trust and about your brother.

Christine James · Answer

Your brother cannot change your father's trust.  That does not mean he will carry out it's terms.  I would have the trust reviewed by an attorney ASAP to make sure you don't have major issues going forward.  It will be well worth your time and a couple hundred dollars.

Dara J. Goldsmith · Answer

It depends upon what the trust says.  If he  has a power of appointment he gets to choose the beneficiaries.  You need an attorney to review the actual  trust and advise you.  He can hire whatever attorney he chooses.  This information is only intended to give general information in response to an inquiry.  It does not establish an attorney client relationship.  This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.

Thomas Edward Gates · Answer

The Executor caries out the wishes identified in the Will.  The Trustee carries out the provisions of the Trust.  The Trustee cannot change any provisions in the Trust.  As a beneficiary, you can asked for an accounting.  If the Trustee refuses you can take the matter to court.

James Frederick · Answer

Your brother is free to hire his own attorney and SHOULD do so. He would normally not be able to "change the provisions" of the trust. But your father may have given him discretion as to how to carry out the provisions. You are entitled to a copy of the trust and you should request one.

Mark T. Peters · Answer

I doubt that he can change the terms of the trust, but if you don't trust him, you can always hire an attorney to see if there are grounds to have him removed.

Randall Romei · Answer

Generally, once the settlor of the trust dies the trust is irrevocable and cannot be amended.  Some trusts do have provisions for the appointment of a "trust protector" that can change the trust in limited circumstances to carry out the original purposes and intent of the settlor under changed circumstance (such as changes in the tax laws).  The terms of the trust or reference to the statute determines the process for such changes.  A petition to a court can also be used to change the terms of the trust.  Again the change is only allowed to carry out the original purpose and intent of the settlor of the trust in the face of changed circumstances.  If you or a descendant of yours is the beneficiary of the trust then you will be notified to allow you to object or challenge the attempted change.  As a beneficiary you should have a copy of the original trust.

Steven Fluhr · Answer

If you are a beneficiary, you can ask for an accounting.

Jayne Sebby · Answer

Yes, he is entitled to hire an attorney to assist him and no, he can't arbitrarily change the provisions of the family trust.  However, if something about the trust doesn't adhere to the law or there is a significant change in the financial makeup of the trust, he can get permission to make some adjustments.

Richard Keyes · Answer

Please read through the trust.  You will find that your brother is the successor trustee and not the executor.  Once the grantor or settlor (your father) has died, the trust cannot be amended.  There is a difference between trust and ability.  If he is not following the terms of the trust, then see an attorney to remove your brother as trustee for breach of fiduciary duty in carrying out his duties as trustee.

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Is he able to hire his own attorney and change the provisions of the family trust?

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