IN Nevada, trustee/beneficiary continues (11 months and counting since Settlor's death) to live in a trust property, fully furnished with Settlor’s personal effects, against one beneficiaries (there are three) wishes claiming her right to do so to be considered payment for her services. The trust provides that trustee be paid an annual fee which is reasonable. Trust is to be distributed at death of settlor. No attempt has been made by trustee to sell properties.
The powers and discretion granted to the Trustee are exercisable only in a fiduciary capacity.
This situation obviously gives incentive to trustee to never distribute the trust assets. I wish to demand the trustee remove herself from the premises, taking with her only her personal property and to never utilize the property on a personal base again. I also want her to deposit an amount into the trust account to compensate for the difference between the trust provided reasonable amount and normal rent in the area.
Can I expect success by petitioning the probate court if she refuses?
If a trustee is entitled to "reasonable compensation" under the trust instrument, the key question -- as you have already concluded -- is whether the value of the rent-free occupancy of a furnished home exceeds the compensation to which the trustee is entitled. If the trustee is not complying with the terms of the trust, is not exercising due care in the administration of trust assets, or is not being impartial to all beneficiaries, the court can reduce or eliminate the compensation to which the trustee would otherwise be entitled to. A trustee can be required to pay the trust for benefits not covered by the amount of court-approved compensation. It is impossible to predict the chances of success in court, but from the facts you have given, it would appear that your position is sound and that a petition under NRS Chapter 153 is justified.
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Elder Law Attorney
"Can I expect success by petitioning the probate court if she refuses?"
Whenever you are dealing with the court, you cannot reasonably expect anything, but based on the facts you've recited, it would not be foolish to ask the court for the relief you've described.