Can an estate trustee make a decision to keep a condo in a family trust rather than selling and distributing proceeds?

I am dealing with a virtually identical matter here in Kansas City. The first thing to do, which you have, is review the express terms of the trust agreement. If it requires a distribution and the taxes and debts have all been paid, the brother needs to either sell the condo or purchase it from the trust, thereafter dividing and distributing the proceeds as soon as possible. I would advise him that you are going to take legal action, and not only will you get the house sold, but you will request assessment of reasonable rent for his use of the condo, taxes, insurance, etc.; you will also ask the court to approve payment of your fees and costs from his share of the trust as you should not have to file a legal action to get him to do his job as trustee. You also need to see if the trust requires an accounting - you need to obtain an accounting of all assets in any case (including copies of the income tax returns; estate tax returns; check register; etc.). Good luck.

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So...please clarify for me: Is your brother the trustee of the trust, or is he the executor or administrator of your mother's estate? Or both? (One can be a trustee of a trust, or an executor or administrator of an estate, but there is no such thing as a trustee to an estate.)

Either way, it appears from your description that Brother #1 has some fiduciary relationship to you and Brother #2. It also appears that Brother #1 is an equal beneficiary.

This said, if I was your attorney, I would have a number of questions about this:

* What are the actual terms of the trust? Does the house (or, if sold, the monies earned from the sale) stay in the trust, or is it supposed to vest to you and your siblings free and clear of trust (and, if the latter, at what point)? Does the trust agreement actually state that the house is to be sold, or does it simply say that the house is to be owned jointly and that you may sell it? These are very important questions, and I recommend that you have an attorney review the trust agreement with you.

Also, does the trust/will expressly state that the house must be sold? Bear in mind that "an equal division" does not necessarily mean that the property must be sold. It is possible for three people to own a house. (This presents additional legal issues.)

Either way, it is likely possible for you and Brother #2 to compel a sale of the house, depending upon the answers to the questions above. It is just a matter of how, and what actions must be taken.

I strongly encourage you and your other brother to consult with an attorney.

Sincerely,

Joe Stanganelli
Beacon Hill Law

First of all, it seems that your mother's house is in New Hampshire and that her estate might be going through the probate process in New Hampshire as well. Is there also a Trust or is everything under her Will? Whether the house is owned by a Trust, or whether the Will controls, your brother who lives there does have what is known as a "fiduciary duty." A fiduciary duty means that he has certain obligations to make sure that the assets in the Trust or in the Estate are managed carefully for the beneficiaries.

If the house is owned by the Trust, your brother's powers and obligations will be clearly spelled out by the Trust document. If it is part of your late mother's estate, then his powers and duties are defined by the laws of New Hampshire.

The smartest thing you can do is to make an appointment with an attorney who is licensed in the State of New Hampshre and bring your mother's trust and her Will along with you to the appointment. By looking at those documents, the attorney should be able to help you find out what you need to know.