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Can a Personal Representative or Trustee Change or Ignore the Terms of a Trust or Will?

By December 14, 2017August 6th, 2019Estate Planning

There are many instances where people are taken aback by their loved one’s last wishes. Reviewing a loved one’s will can sometimes be shocking and upsetting. Many times children are left out, or items are devised to others. The terms of the will may seem unfair or even ludicrous. This is an understandable reaction and at times, the other beneficiaries can take their frustrations out on the Trustee or Personal Representative. Especially if that Trustee or Personal Representative benefits most from the Trust or Will. There are also times in which all heirs or beneficiaries are in agreement that the Will or Trust does not represents what the Decedent wanted based on conversations with the Decedent prior to death. Many times the Decedent may have passed unexpectedly without having the opportunity to revise their Will or Trust.

Regardless of whether the provisions in a last Will or seem unfair or unjust, the document contains someone’s last wishes and those wished are legal and binding. If an heir or beneficiary believes the executor is not fulfilling her legal obligations under the Will or Trust, a petition can be filed with the court for either a complete accounting of the estate’s assets or removal of the executor in a serious case of mismanagement or failure to conduct their duties. An executor who is violating his duties can be held in contempt of court, which can carry fines and even a jail sentence. The heirs or beneficiaries can also pursue a civil lawsuit to recover lost or stolen assets, and legal fees or may ask the court to compel the distribution of certain funds or assets. Therefore, you cannot simply ignore or change the terms of a Trust or Will without serious repercussions. But there may be a way around some of these problems.

In Michigan, if all beneficiaries agree and come to a consensus on how to resolve whatever the issue is, they can agree to modify the shares that each of them is to receive. However, if any beneficiary that is affected by the proposed change is not in agreement with the proposed modifications to the distribution scheme, they cannot be forced to accept the modification. Sometimes, this prevents the modification from happening at all, while other times, the modification can occur with respect to the beneficiaries that are in agreement, leaving any disputing beneficiary’s share unchanged from the terms as outlined in the Will or Trust. Sometimes, such a modification should have court approval.

Even if an agreement to modify the distribution cannot be reached by all the parties, there are still options. Once a beneficiary receives their inheritance, it is their money to spend as they wish. If one or more beneficiaries do not want to lessen his or her inheritance in order to give a portion to someone else, then you may still personally gift portions of your share to the shorted or excluded beneficiary or heir. The distributions would still be distributed according to the terms and conditions outlined in the Will or Trust, at which time you would be free to spend it, or gift it, to whomever you choose.

Having trouble or questions administering a Will or Trust? Feel free to contact Hewson & Van Hellemont, PLC, and let us help you sort through the process and advise you of your options.

Bruce Rice

Bruce Rice a graduate of Wayne State University Law School practices Family Law, Estate Planning and Probate Litigation and Administration. View Profile

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