Which way is a Probate Judge likely to go?

[caremimu]

What is the name of your state (only U.S. law)? I live in Ohio, but Utah is the state where this Will AND Trust are being probated.

I was named as a beneficiary in my cousin's Trust. He lived in Utah at the time of his death--which was 07-4-08. This past June (2009) I received a letter stating that the Trustee had withdrawn money from the brokerage account that I was entitled to a percentage of--stating that it had been done to "repay" my cousin's estate for supposed "loans" that they said that I owed my cousin. The Trustee is basing this allegation on a note written in the memo of 4 checks that my cousin had given me back in 2005--which he wrote: "Interest Free Loan."

I do not owe my late cousin anything. I have multiple emails and letters from my late cousin that clearly state the reason he wrote what he did in the memos of the checks was because he didn't want to end up paying gift tax on the money he gave me to help me out if the amount ended up exceeding a particular amount . . . which it never did anyway.

Here are the facts in order, as they have occurred:

1. I was originally never given an opportunity to refute the Trustee's allegations regarding the supposed "owed" money. The amount they believed I "owed" was just taken and given to the Trustee as a "finder's fee." I didn't even find out about it until four and a half months after the fact.

2. When I did finally get notified of what had taken place, I began requesting documentation to validate what their actions had been based upon--which I never received.

3. I was forced to get an attorney, who, finally received the first "installment" of information from Utah on Monday, October 05, 2009--In the form of a copy of a "Motion for Declaration and Determination of Rights" that apparently had been filed with the Utah Probate Court on September 29, 2009. The documents are basically asking the court's permission to take the money from the brokerage account that I'm entitled to as "repayment" of the supposed "loans." The ironic part is, nowhere in the documentation filed with the court, do they state that they ALREADY TOOK THE MONEY WITHOUT THE COURT'S PERMISSION OVER EIGHT MONTHS AGO WITHOUT BOTHERING TO TELL ME ABOUT IT FIRST!

4. My attorney (Ohio) is now telling me that if I want to object to this motion, that I must do it "Pro Se" because she is not licensed in to practice in Utah--but has also told me that the Trustee now wants to know what amount of money I would be willing to accept to settle the case--rather than let the judge "decide." I have also been told that I have only until Tuesday, October 13, 2009 to decide.

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My question(s) are these:

How good are my chances that the judge will side with me regarding the fact that they shouldn't have taken the money--and THEN asked permission to do it--only when they found out that I was not going to just let it slide?

How much "weight" does a note in the memo of check actually hold--when I have several documents that explain why it was written? Which argument is more "legally" compelling? (For lack of a better way to put it . . . )

What reasons would/could the Trustee and her legal team have for wanting me to "settle," if they truly believed that they were justified in taking the money in the first place?


Thank you for your input . . .

[Kiawah]

What reasons would/could the Trustee and her legal team have for wanting me to "settle," if they truly believed that they were justified in taking the money in the first place?

Because any disagreement like this is just burning up money going to lawyers, and away from the beneficiaries....and it's wasting time. Every hour that a lawyer is involved with this, and every letter written, is ka-chink ka-chink into their cash register, and the trust looses (and by extension the beneficiaries <including you> loose).

[anteater]

Usually, Rule #1 is keeping your story straight.

Previously, it was your uncle's trust. And, previously it must have been 20 year old gifts/loans for college. Now, it's a cousin's trust. And, it is 3 year old gifts/loans for which there are "multiple emails and letters" stating that it was really a gift, but the cousin/uncle was trying to play fast and loose with gift tax reporting.

I am beginning to think that there is something to the trustee's side of this story.

http://forum.freeadvice.com/wills-trusts-estate-planning-113/please-advise-me-470095.html

http://forum.freeadvice.com/wills-trusts-estate-planning-113/there-time-limit-settle-affairs-463977.html

[caremimu]

Hello "Anteater,"

Every time I am given information by the other side for "reasons" regarding "why" and for "what" exactly this money was withheld, I deal with it! Originally it WAS supposedly withheld for money that was given to me for school; however, after much digging I was able to effectively refute the original allegations . . . which was when I got hit with this crap! Every time I think things are settled, they come up with something else! I try to keep my questions as concise as possible, which includes trying to eliminate information that is no longer pertinent to the case--and/or to the questions that I am asking--because I CANNOT be sure that the same people will always respond to my posts--or care about unnecessary information that no longer applies. I actually resent the implication that I need to "keep my story straight," simply because I've tried not to bore the forum with information that no longer pertains to the case at hand. Oh, and for the record . . . with regard to the comment about uncle vs. cousin . . . He was actually my cousin; however, he and my father were always very close--and due to his age and the relationship between he and my father--My siblings and I always referred to him as our uncle. Hopefully in the future you will simply ask for clarity if you are unsure of something that has been written, before you respond to a person's post with such a heartless and suspicious tone in your reply--as well as your verbiage.

Now, if you have a legal response to the questions I've posed . . . I would appreciate hearing it.

Thank you, kindly.

[Dandy Don]

You need a UTAH trust attorney who practices in the same city where the court is located to defend you. The reason they are willing to settle is that they have no valid legal defense to their claim and they know they will lose. In the absence of anything in writing to prove you agreed to the terms of a so-called "loan", the facts are in your favor and you are strongly likely to prevail.

And you need to consider asking your attorney if you have grounds to request an audit of the trust or whether you are entitled to receive annual accountings as a beneficiary, just to guard against any other possible theft from you by the unscrupulous trustee.

DANDY DON IN OKLAHOMA (tiekh@yahoo.com)