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Help with Removing Trustee, utilizing minimal $$$, from miles away...

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Sad_Beneficiary

Junior Member
What is the name of your state? CA and OH

Hello and thank you in advance for taking the time to read this. My father died approx. 2 years ago. There are 2 beneficiaries, myself and brother and we currently reside in Ohio, but the current trustee (court appointed) resides in California where the probate court proceeding took place. In these 2 years we have received no updates, reports or anything on my father's estate. Here is the context:

The current trustee is my uncle and claimed (at the time my father died) that all the assets belonged to him as a result of "loaning" my father some money, though no records were ever kept, making this a "gift"? Ignoring his claim, I hired an (bad/novice) attorney to remove the first named trustee (stepmother, separated) and then my brother and I (as the only 2 beneficiaries) appointed myself as trustee. We moved soon after to Ohio for personal matters and not a week later my uncle hired an attorney who (through probate) was able to appoint my uncle as trustee due to a supposed (still not investigated at this time) mistake my lawyer made (my lawyer refunded my money). Neither my brother nor I flew to California to object, as it was not financially feasible.

We are still not in a financial position to spend months in courts IN California, nor hire an attorney. We feel that my uncle is breaching the trust left and right (self-dealing, conflicting duties, etc.) and believe that now is a good time to try and regain control over our father's estate. We also believe that since my uncle has furnished no statement of assets, financial accounting or one single update that this falls into the "duty of disclosure" category of breach of trust.

Is there any way, without incurring tons of fees that we (as beneficiaries) have a right to demand a new trustee? True, all our beliefs are based on verbal communications, thus hearsay, but surely there is a breach or violation in here somewhere that can be petitioned, even if the "disclosure" argument does not hold. This raises a second point. I moderately understand surcharges and such, but we feel my uncle will use trust money to hire a lawyer to fight this and draw it out, thus incurring more costs at our expense and to that of the trust. Again, we (as beneficiaries) cannot afford to travel much, nor do we have trusted people in California to grant power of attorney. The estimated worth of the estate at the time of death was $300,000 in escrow (house closed escrow AFTER time of death, which seemed surprising) and about $150,000 more in real estate and assets. A lot of people seemed to have messed this one up for us, no?

This is a real Catch 22 as we do not have the money to fight for the money. I am willing to spend the summer (I am a university student) in California at my own expense hoping to resolve this issue and reimburse expense after completion.

Is there a chance his sly lawyer could deny the beneficiaries a mutual request of removal?

What am I up against? I may not be a lawyer, but I can surely represent myself and my brother in a court if needs be. Is there a way to freeze the trust for the time being until this is resolved so he cannot utilize trust finances to fight us? (Maybe bringing to light Self-dealing?)

Maybe a passive approach of placing a Lien on property?

What I see as the best option now are to file for immediate removal of the current trustee under some probate code and appoint a new one. What I see as the second best option is to petition for disclosure of the documents relating to finances of the trust, then hopefully "catching" my uncle having breached the trust once or more over the last 2 years. (I read somewhere that the statute of limitations for a dispute claim is 3 years?)

I understand I am asking a ton here. Maybe the solution is simple or I am making it too complex. Either way, I need advice please.

Thank you ever so much, as a Communication major, sites like these portray the true concept of realizing justice through rhetoric and exchange!

-Sad
 


Dandy Don

Senior Member
Is there a will being probated or were all assets put into the trust?

Have you received any monies from the trust at all? The trust is a private matter to be adminstered outside of court so it's hard to see why the trust is involved in a court proceeding anyway. Unless there was difficulty in getting the real estate sold, it's very odd that you haven't received any payout yet, which normally should have been done within a couple of months.

Don't let your experience with a bad attorney prevent you from getting a qualified, competent one who has experience in trust matters--you truly need one and this is not a do-it-yourself job. You need to interview at least 3-5 trust attorneys by phone or e-mail and this is what you need to be asking:

(1) Would you please write a letter to the trustee on my behalf to ask for a copy of the trust document along with an accounting statement for each year that the trust has been in existence, and copies of the trust tax return? That is your right as a trust beneficiary. THE LETTER MUST BE A CERTIFIED LETTER WITH RETURN RECEIPT so you can prove it was received by the trustee.

Then you and your attorney need to scrutinize the accounting statement and the probate file to see if there are any irregularities.

(2) Can we make a motion in court to bring up any irregularities in this trustee's actions and can we ask for a trustee's bond to be posted (even though the trust may exempt the need for such a bond) in order to protect the financial interest of the beneficiaries from potential theft by the trustee?

When you explain to the attorney that you are of limited financial means, explain how much the trust is worth and they may be willing to set aside the fee or reduce the retainer and collect the bulk of the fee after you get your money. Or ask your brother to take out a loan from a bank or credit union to pay the retainer. Don't just hire the first trust attorney you see--hire the one that can best answer your question of "What is your exact strategy for getting the results I want?"

As of right now you have no documented proof that the trustee has done anything wrong, but I somehow feel that you and your attorney will get such proof and then you will know how to proceed.

DANDY DON IN OKLAHOMA ([email protected])
 
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Sad_Beneficiary

Junior Member
Being a do-it-myself kind of person is probably a part of why I am in this problem, so I will "shop around". Currently, my uncle is also trying to inter my father's cremated remains at a memorial park, which is inconsistent with my father's VERBAL wishes, though no contentment(?) exists within the trust regarding burial. We are trying to prevent him from being placed there - he currently sits in the corner of my grandmother's old house. This is very recent news and the only real news to this date.

During the time the trusteeship was being challenged, my uncle "allowed" (in his words) my brother and I to each take $4000 from my grandmother's estate. That was 2 years ago.

I did not know a lawyer would be willing to work without a sizable retainer and continued payments, though I am somewhat biased as to who and what most California lawyers act, it is probably a misrepresented bias.

The only thing in the trust was the house sold after his death. He had half ownership of my grandma's house after she passed away one year prior. So, needless to say, her estate is unresolved as well, and my brother and I are entitled to 25% each as stated in HER trust (minus $4000 each). He also had a pour over will, so probate was just (so it seems) to appoint my uncle as trustee? I am still a bit unsure as to why or how he did that, other than the beneficiaries unable to attend that hearing, so by default he won?

Either way, thank you for your insight, I shall post updates!

-Sad
 

tecate

Member
Dandy Don had some great comments. I have a few more, but want to put a few of your comments in context. Please realize that they will scare many attorneys away:

Being a do-it-myself kind of person is probably a part of why I am in this problem, so I will "shop around".

I did not know a lawyer would be willing to work without a sizable retainer and continued payments, though I am somewhat biased as to who and what most California lawyers act, it is probably a misrepresented bias.

Neither my brother nor I flew to California to object, as it was not financially feasible.

We are still not in a financial position to spend months in courts IN California, nor hire an attorney.

Is there any way, without incurring tons of fees that we (as beneficiaries) have a right to demand a new trustee?

This is a real Catch 22 as we do not have the money to fight for the money. I am willing to spend the summer (I am a university student) in California at my own expense hoping to resolve this issue and reimburse expense after completion.

I may not be a lawyer, but I can surely represent myself and my brother in a court if needs be.

Thank you ever so much, as a Communication major, sites like these portray the true concept of realizing justice through rhetoric and exchange!



You have the option of representing yourself in this matter, (not your brother) but you will need to learn a lot about accounting, and probate law and procedure to do so effectively. Most attorneys do not know how to handle a matter like this, since it takes expertise as a probate litigator (meaning both, not one or the other) and accountant (an entirely separate discipline) to do so efficiently. It looks like you have already done a lot of research, discovered how attorneys learn more about law and procedure, and learned much of what you will need to know to move forward: hopefully enough to realize that this is a complicated litigation matter for which even average attorneys need help. Who knows, if you like this type of work, you might want to spend three more years in school for your J.D. Forcing people to give up what they think is theirs takes lots of time and effort. I hope that the venue probate court has patience in allowing you to deal with your matter in pro per.

One possible way to proceed is to hire an attorney who will agree not to become the attorney of record, and instead, guide you as you proceed in pro per similar to the way experienced lawyers teach young associates. The attorney will want to take all precautions to prevent you from suing him or her in case you mess up, but if you can find one willing to work for you on this basis, this may be the way to proceed. Expect lots more research and court appearance time on your part. It will probably take years to settle, but who knows?

Otherwise, if you want to do this by remote control, this looks like an expensive lawsuit to fund. Good luck!
 

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