Trustees Surcharged for Improper Mortgage Payments and Denied Legal Fees

When the settlor of the trust transferred a residence to a trust for the benefit her son and daughter-in-law, who were also trustees, and there was an unwritten “understanding” that the trustees/beneficiaries would pay the mortgage, and did pay the mortgage for many years, the late charges on the mortgage were not debts of the trust but of the surviving trustee/beneficiary. Although the trustees had the power to mortgage the trust property, the son as beneficiary was denied the power to transfer or mortgage his interests in the trust, and so the son’s taking an additional mortgage against the property was improper, and the surviving trustee was prohibited from using trust funds to pay the second mortgage and was properly surcharged for those payments even though she herself did not benefit from the second mortgage. Attorneys’ fees of the trustees were properly denied when the trustees failed to meet their burden of proof to show which fees were incurred in administering the trust and which fees related to their breach of trust. In re: Sletten Family Trust, 2023 PA Super 186, ___ A.3d ___ (9/27/2023).

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