Beneficiary Seeks Representation in California Turst

[ConfusedInCalif]

CALIFORNIA

I am a forum newbie. My question is regarding a California trust in which I am one of four beneficiaries.

The estate value is estimated to be between three million and four million dollars. The assets are primarily cash on bank deposit and government bond mutual fund shares. There is a small piece of unencumbered residential real property, a free-and-clear upscale mobile home sits on that real property, and there is a newer motor vehicle with a clear California title.

Obviously, death prevents the settlor from serving “in the office of trustee.” The first successor trustee predeceased the trust’s settlor by approximately 24 hours. The second successor trustee is also a beneficiary and is represented by an attorney that took the case on a basis of “Pay me at the time the trust settles since you have no money now and the estate clearly has the ability to pay.”

The 79-year old first successor trustee was a friend of and caretaker for the settlor. The first successor trustee exercised what may prove to be significant undue influence over the 97-year old settlor.

As an impecunious writer and trust beneficiary, my question is this: How can I find a skilled attorney that would consider contesting the trust on a contingency basis assuming the attorney feels there is sufficient compelling evidence of undue influence?

More details than that are likely unnecessary at this moment. Thanks in advance to all for your consideration in the matter.

 

[tranquility]

All you can do is go to different attorneys and ask. Since you have alleged nothing in regards to the facts of the undue influence, no one can guess as to the potential for success. Since the trustee has trust funds to defend the trust, absent compelling facts, it is unlikely you will find an attorney willing to litigate on contingency. You might find one to send some letters and try to get a dialogue going

 

[Dandy Don]

Please explain the facts regarding the undue influence so someone can try to ascertain if you have reason to pursue such a case.

Was the settlor mentally competent at the time the trust was drawn up? What year was the trust drawn up?

 

[LdiJ]

All you can do is go to different attorneys and ask. Since you have alleged nothing in regards to the facts of the undue influence, no one can guess as to the potential for success. Since the trustee has trust funds to defend the trust, absent compelling facts, it is unlikely you will find an attorney willing to litigate on contingency. You might find one to send some letters and try to get a dialogue going

I think that I disagree with you about it being unlikely that an attorney would take it on contingency. After all, the OP is a beneficiary of the trust and unless the trust was written in some way to exclude any beneficiary who challenged the trust, there would eventually be money to pay the attorney.

However, I do think that its likely a mistake to challenge the trust because 1) any attorney who would take it on contingency would take a huge chunk of the OP's eventual share (think 40%) and 2) it would definitely delay any distribution of money from the trust, potentially for years. I think between the attorney who would defend the trust (and therefore be paid from the trust) and the attorney that would be paid by a percentage of the OP's share, I think that the OP could end up waiting for years, for less actual net cash than he would get by not challenging the trust.

Now, I might think differently if the friend gets 70% of the trust and the other three beneficiaries only get 10% each, but it doesn't sound that way.

 

[ConfusedInCalif]

Clarification and Additional Details

Now, I might think differently if the friend gets 70% of the trust and the other three beneficiaries only get 10% each, but it doesn't sound that way.

Please read on and note that the second successor trustee gets more than 98% of the trust's $3,000,000+ proceeds.

= = = = = = = = =

PART ONE OF TWO

Thanks to all of the respondents so far! I can now see that my original post was woefully lacking in detail. Being new to this sort of situation, I first thought I might be giving too much information. O.K., I was certainly wrong about that!

FURTHER DETAILS:

Lowball estimate of cash and liquid securities is $3,500,000, although I suspect it to be substantially more than that. I have not seen the estate’s financial statement.

Lowball estimate of real and personal property is $350,000. Again, it may be significantly more than that because I have not seen the estate’s financial statement.

Any creditor claims or accounts due would be less than $10,000. The settlor always paid his accounts in full on or before any due date.

The settlor is my paternal uncle. The four beneficiaries consist of the second successor trustee, a social friend of the settlor, myself, and my brother (biological nephews of the settlor). There are no other listed beneficiaries and no other living relatives of the settlor.

Under the terms of the trust, the second successor trustee will receive in excess of 98% of the trust proceeds. It is my contention that this was not the settlor's intention and that he was ill-advised (or bamboozled) by the first successor trustee in order the enrich the first successor trustee.

According to the second successor trustee’s attorney, she (the second successor trustee) was unaware the she had been named as second successor trustee. That lady was the daughter of one of the settlor’s social friends as well as also being a social friend of the settlor. In conversations with me regarding the trust, the settlor continually and incorrectly referred to her by her mother’s given name even though the settlor attended the mother’s funeral many years ago. Although I am uncertain, I have good reason to believe she is more than seventy-years old.

The settlor stated to me in 2014 that he had amended the trust to reflect changes in trust assets.

However, the attorney that created the trust in 2005 recently stated in writing by e-mail that she had not created any subsequent documents or amendments to the original trust document. I have no idea where that later trust document might be. Unfortunately, it appears to be conveniently “lost”.

It is my contention that the settlor was unable (by his own admission and facts of an accident head injury) to make any sort of informed decisions in the matter of his estate when the trust document with executed. When I discussed the estate plan in person with the settlor in 2010, he explained that he intended the bulk of the trust proceeds to be given to both my brother and myself. Further details are below.

The settlor’s residence was in a private community near Santa Cruz, California.

In the 1980s, I worked for what was then the oldest and largest unmerged financial firm on “Wall Street”. I worked in firm’s European headquarters in Paris, France, and then in one of their southern California offices. I left my post there in 1989. Unable to then secure any challenging career opportunities in California, I cast my net globally. Since 1989, I’ve taken several short-term overseas jobs in teaching, writing, and project administration. I’ve even tired two unsuccessful private business ventures, one of which left me lying on the street in a Bulgarian city with a gunshot wound.

I stayed in contact with my uncle (the settlor) throughout that time period. Whenever I would visit my uncle, he always wanted to discuss the financial markets. As early as approximately 2000, those talks always seemed to end-up with him asking my advice about whether or not he should get his ordinary will converted into a trust. I always demurred and suggested he speak to an attorney.

So, over the ensuing fifteen years, the settlor continued to solicit my comments and/or advice in the matter of his estate plan as well as his investments. This was done on a non-professional basis because I had long since changed professions. My remarks to him simply centered around capital preservation, safety, and liquidity because of his advanced age. During that time period also he inherited cash, securities, and real property from two estates that today account for roughly one half to two thirds of the current estate value.

Finally, when I visited my uncle to celebrate his eighty-seventh birthday in early-August 2005, he disclosed to me that he intended to convert his will into a trust. He explained that for several years the first successor trustee had been suggesting/pestering him to make that change. My uncle again asked my opinion on the planned change. I knew and recited only the ideas of privacy and expediency that a trust would offer in estate settlement when compared to an ordinary will.

Perhaps importantly, between that early-August 2005 conversation and the execution of the new trust document in late-August 2005, my uncle suffered a head injury when he “fell” and hit his head in the stairwell of the first successor trustee’s condominium building in San Francisco. The first successor trustee lived in San Francisco at the time. He was a social friend and frequent guest of the settlor in the Santa Cruz area.

It was disclosed to me during a Christmas visit to the settlor in December of 2005 that the first successor trustee had “partially” moved-into the successor’s home and was now living there four or five days each week. This was because the settlor wanted a caretaker or guardian due to the fact he felt unwell after his accidental fall in August. Unbeknownst to me, during that time the settlor executed a durable power of attorney document giving the first successor trustee that power.

Subsequent to the first successor trustee moving into the settlor’s home, and with few exceptions, I was unable to discuss any matters over the telephone or in person with the settlor because the first successor trustee would always listen to and interrupt our conversations from a telephone extension in the settlor’s house or be fast at the side of the settlor during my in-person visits.

I discussed the matter with local authorities in 2006. The authorities visited the settlor’s home and reported to me that the first successor trustee initially stated he would not allow the settlor to come to the door. When the authorities insisted, the settlor came to the door and told them there was no reason for them to be concerned. I was told that because of the settlor’s statement and the fact that he appeared healthy for his age, nothing more could be done by the authorities.

CONCLUDED IN PART TWO

 

[ConfusedInCalif]

Final Details

PART TWO OF TWO

During a visit to the settlor in 2010, it was disclosed to me that he had sold a commercial real estate property on the advice of the first successor trustee. The settlor asked me after the fact if the transaction was a good deal for him. Apparently his only advisor was the first successor trustee and no tax consequences were discussed prior to the sale. My quickly investigation seemed to indicate that the property had immediately been “flipped” for a thirty-five present profit. It was clear that neither the settlor nor the first successor trustee had any real idea of the property’s value.

There was no need of any sort for the sale. The settlor did not need the cash and the property generated substantial cash-flow and tax benefits to him. I suggested that the settlor have his attorney amend or revise the trust because of that property sale plus major discrepancies in how the settlor explained his understanding of the trust plus what the first successor stated in the only in-person discussion among the three of us.

In August 2014 the settlor stated to me that the first successor trustee was starving him and trying to have him “locked-up”. I made an emergency trip from a work project in Central America to learn what I could in person. When I arrived at the settlor’s residence, the first successor trustee told me the settlor was sleeping and that I was not welcome to visit. I quickly learned from a neighbor that not only was the settlor not sleeping, but that he had been hospitalized. I went immediately to the hospital only to learn that the first successor trustee had removed the settlor to a hospice or transitional nursing facility. The first successor trustee was apparently attempting to hide the facts from me.

I visited the hospice and found the settlor sedated. No case worker was available to discuss the matter. I returned the next and found the first successor trustee already there and the settlor was still heavily sedated. In a discussion with the two case workers I learned that the settlor was suffering from malnutrition and dehydration.

It was not until two days later that I was able to speak to the settlor. He stated that the first successor trustee had only allowed him to eat small, infrequent meals either at home or (on occasion) local coffee shops. The settlor claimed the starvation tactic was a punishment for recently amending/revising the trust. When I asked the settlor why he had not called me or called for help from the local authorities, he remarked that he could not afford a long-distance call to Panama and that if he called local authorities, no one would believe such a story.

The next day, I went to the hospice and learned that the first successor trustee had taken custody of the settlor and physically removed him from the hospice against the recommendation of the case workers. I then went to the settlor’s home and was refused admittance by the first successor trustee. So, I called the local authorities and learned that the hospice had called only moments before my call. I was subsequently informed by the authorities that when they visited the settlor’s home, the settlor refused to make a complaint. I was told that I would have to hire an attorney if I wanted to pursue the matter. Absent the settlor’s willingness to complain, the authorities considered the matter a possible civil matter at most.

Since that date I was unable to visit the settlor because of business commitments and or outright refusal by the first successor to permit me access to the settlor. I was told in no uncertain terms by the first successor trustee that I was not welcome and that he “knew” my only interest was financial rather than familial. He further stated that he had long-ago convinced the settlor that any discussion with me regarding the estate would not be in the settlor’s best interest. Essentially, he implied that he had convinced the settlor that I could not be trusted and that any estate proceeds would accrue to him, the first successor trustee. Finally, when I mentioned the amended trust document, the second successor trustee remarked that I would never find the amended/revised trust document.

Over time, it became clear to me that there was nothing I could do with my hit-and-miss visits to the settlor. So it was my plan to complete a work project in Mexico this summer and possibly have the wherewithal to fund some sort of action to get to the bottom of the situation with the services of a specialist attorney in the geographic area of the settlor’s home. With what I learned from the hospital staff, and hospice case workers, the obvious was no longer eluding me. The entire matter had spiraled out of control long ago.

Ironically, the current Mexican project has not worked-out yet for me. Even more ironic is that the first successor trustee (after apparently secretly salivating over the estate’s value for many years) died one day before the settlor died. That dumped everything into the lap of the second successor trustee who was taken by complete surprise in the matter if the written e-mail remarks from her attorney to me are correct.

Once again, thanks to all for considering the situation.

 

[tranquility]

You don't have compelling facts. You have suspicions. I suspect you will not find an attorney who will take this to litigation on contingency. You might find one to enter some negotiations for a contingent fee. But, shop it around. That is all you can do.