fiduciary breach for 12 years?

[rmacki]

What is the name of your state?What is the name of your state?
Oregon. Trustee is in Washington State.


My grandmother passed away 12 years ago. To my knowledge there was a will and a trust. My mother is the executor of the estate. My brothers and I are named as beneficiaries who will be next in line for trust assets (which includes real property and monthly income) after my mother passes. There are also other family members who are active beneficiaries and others who are next in line.

Over the past 12 years I have heard that my mom has acted on her own accord and not according to the terms of the trust and has been in breach of fiduciary duty. From what I have been told she has paid off a house with money of the trust and transfered the title into her own name. She told me years ago that she was sending more money to other relatives than was mentioned in the terms of the trust. I was recently told that she has paid child support payments with trust checks for one of her sons, sent birthday gifts for one of her grandchildren with a trust check and pays monthy bills for still another grandchild not mentioned in the trust.

I have asked her several times for copies of the trust and the will and have gotten the response. "What is it you want to know and I'll tell you." She is now ignoring all requests for a copy of the trust.

Q:
Would the Will have to been filed?
I checked with county records and there is none.
She states the trust is irrevocable and never went through Probate. There was a sizable estate and monthly income.

Q:
Would she have to register as trustee?

Q:
What should be my next step?

 

[rmacki]

One of my brothers and I are concerned that the trust is in such an ill state that it will take years to recover. We know that there must be other offenses too not to mention IRS issues. To my knowledge no accounting of the trust has been requested by anyone or provided to anyone.

If our name is even mentioned do we have the right to see the trust and require some accountability from 'mommy' the executor and how the trust has been managed?

What steps should we take??

Thanks for replies.

 

[Dandy Don]

What state did grandmother die in and in what state was the trust drawn up?

 

[seniorjudge]

What is the name of your state?What is the name of your state?
Oregon. Trustee is in Washington State.


My grandmother passed away 12 years ago. To my knowledge there was a will and a trust. My mother is the executor of the estate. My brothers and I are named as beneficiaries who will be next in line for trust assets (which includes real property and monthly income) after my mother passes. There are also other family members who are active beneficiaries and others who are next in line.

Over the past 12 years I have heard that my mom has acted on her own accord and not according to the terms of the trust and has been in breach of fiduciary duty. From what I have been told she has paid off a house with money of the trust and transfered the title into her own name. She told me years ago that she was sending more money to other relatives than was mentioned in the terms of the trust. I was recently told that she has paid child support payments with trust checks for one of her sons, and sent birthday gifts for one of her grandchildren with a trust check.

I have asked her several times for copies of the trust and the will and have gotten the response. "What is it you want to know and I'll tell you." She is now ignoring all requests for a copy of the trust.

Q:
Would the Will have to been filed?
I checked with county records and there is none.
She states the trust is irrevocable and never went through Probate. There was a sizable estate and monthly income.

Q:
Would she have to register as trustee?

Q:
What should be my next step?

Q: Would the Will have to been filed?

A: If there were assets not covered by the trust or assets not otherwise passing some other way (e.g., joint tenancy), then a probate estate should have been opened.


Q: Would she have to register as trustee?

A: I don't know.


Q: What should be my next step?

A: Get a lawyer.

 

[rmacki]

What state did grandmother die in

Oregon.

in what state was the trust drawn up?

I believe in Oregon.


If I were to contact lawyers to see if they were the ones who drew up the trust would they release a copy to me? Would they represent the estate or the trustee?

 

[seniorjudge]

Oregon.



I believe in Oregon.


If I were to contact lawyers to see if they were the ones who drew up the trust would they release a copy to me? Would they represent the estate or the trustee?

The lawyers who drew up the trust are the lawyers for the person making the trust, so I doubt that they will tell you anything.

 

[Dandy Don]

The lawyers have no obligation to give you that information--your request needs to be sent directly to the trustee.

You need to be consulting with a trust lawyer in Oregon to find out what your specific rights are as a beneficiary (it is very unlikely that an Oregon trust attorney would be reading this message board). I could not get the Oregon law to come up online, but indications are that the trustee does have a responsibility to provide you with a copy of the trust and an accounting statement if you send the trustee a certified letter requesting such (a verbal request is not sufficient). It would be even wiser for you to ask an Oregon attorney to write this letter on your behalf, using their letterhead, which would make it seem a more official request that your mother would be more likely to respond to and she may not be inclined to ignore, as she might want to ignore that request if it came only from you by letter.

Have YOU received any money from the trust yet? When the death occurred, she had an obligation as trustee to distribute the trust to the beneficiaries according to the terms in the trust, not distribute the money whenever she sees fit. You must be careful not to accuse her of breach of fiduciary duty until your attorney has determined exactly what the facts are, although it does look right now that she is exactly in breach--distributing the money willy-nilly at her own discretion is most improper--but she may be ignorant of the fact that she is doing it incorrectly--she may be thinking that she is okay just as long as she is giving money to some of the beneficiaries.

Your attorney will have a better idea of how to proceed after he and you review the accounting statement, and your mother need to be consulting with her own trust attorney if she hasn't done so already for guidelines about how to do her job properly. And you may want to ask your attorney if it would be advisable to ask the trustee to purchase a trustee's bond to protect the financial interests of the beneficiaries.

DANDY DON IN OKLAHOMA ([email protected])

 

[rmacki]

Thanks for replies and time. My brother and I are going to contact an attorney this week. We still want to have our questions together and have enough research so we are able to engage in discussion without having to spend our time being taught.


Pardon my ignorance of correct terms, maybe someone can chime in on them.

A few more questions:

Q: Does a beneficiary who is not active but "next in line" to receive assets from a trust have the same rights and equity rights as the active beneficiaries?
Does it depend on the State and terms of the trust?

Q: Is there a specific term for the position of "next in line" beneficiary?

Q: Is there a glossary online that defines the roles, and language of a trust?
I found This
But I'd like more information if it is available.

Thanks

 

[seniorjudge]

Thanks for replies and time. My brother and I are going to contact an attorney this week. We still want to have our questions together and have enough research so we are able to engage in discussion without having to spend our time being taught.


Pardon my ignorance of correct terms, maybe someone can chime in on them.

A few more questions:

Q: Does a beneficiary who is not active but "next in line" to receive assets from a trust have the same rights and equity rights as the active beneficiaries?
Does it depend on the State and terms of the trust?

Q: Is there a specific term for the position of "next in line" beneficiary?

Q: Is there a glossary online that defines the roles, and language of a trust?
I found This
But I'd like more information if it is available.

Thanks

Q: Does a beneficiary who is not active but "next in line" to receive assets from a trust have the same rights and equity rights as the active beneficiaries? Does it depend on the State and terms of the trust?

A: It depends on the terms of the trust and the state law where the trust was drawn up.


Q: Is there a specific term for the position of "next in line" beneficiary?

A: Successor beneficiary.


Q: Is there a glossary online that defines the roles, and language of a trust?

A: Yes, they're everywhere. But they are useless. You must look at the terms of the trust.

 

[rmacki]

more questions

Ok, we have an appointment with an attorney.
I still have some more questions after my brother and I met for lunch.

Please excuse me if I am getting too hypothetical.

~ If our mom (executor) ignores the request to see the trust from the attorney's letter,

a) Is there any other copy filed anywhere else? What if she says it was destroyed or something?

b) How are our rights enforced?

~ My brother told me that his wife was told by our grandmother shortly before she died that she had made some changes and our mom was in for a big surprise.

a) How do we know we would have the latest version of the trust?

~ IRS issues
a) Who is accountable to IRS? The trust, the executor or both?
b) Who would be responsible for any payback to IRS? Trust or executor?
c) If there is a corp that is paying monthly income/dividends to the trust do they also send out a 1099? Is the income trackable?

~ Who determines the salary of the executor if the executor is also a beneficiary?

~ Who would reimburse the beneficiaries if there was a breach in duty? Trust or executor?

Thanks again for replies and time.

 

[seniorjudge]

Ok, we have an appointment with an attorney.
I still have some more questions after my brother and I met for lunch.

Please excuse me if I am getting too hypothetical.

~ If our mom (executor) ignores the request to see the trust from the attorney's letter,

a) Is there any other copy filed anywhere else? What if she says it was destroyed or something?

b) How are our rights enforced?

~ My brother told me that his wife was told by our grandmother shortly before she died that she had made some changes and our mom was in for a big surprise.

a) How do we know we would have the latest version of the trust?

~ IRS issues
a) Who is accountable to IRS? The trust, the executor or both?
b) Who would be responsible for any payback to IRS? Trust or executor?
c) If there is a corp that is paying monthly income/dividends to the trust do they also send out a 1099? Is the income trackable?

~ Who determines the salary of the executor if the executor is also a beneficiary?

~ Who would reimburse the beneficiaries if there was a breach in duty? Trust or executor?

Thanks again for replies and time.

I do not have ESP, just ESPN, so the only question out of all those I can answer is:

Q: Who determines the salary of the executor?

A: The court, statutes, will, or some combination thereof.

 

[rmacki]

I do not have ESP, just ESPN, so the only question out of all those I can answer is:

lol


Thanks for the answer. But I don't think they were all hypothetical.

Doesn't a trust have to be recorded somewhere?? Doesn't it have to be initiated by a court? There has to be some kind of legal paper trail. If the executor refuses to surrender, what recourse is there? Also, there must be some way to prove that the document is the entity in question. Am I asking for trade secrets??

 

[seniorjudge]

Q: Doesn't a trust have to be recorded somewhere??

A: Not unless your state requires it (and I do not know if it does or not).


Q: Doesn't it have to be initiated by a court?

A: No; that's why you do trusts, to keep the courts out of your business. The only exception is a testamentary trust, which is one set up inside a will and it is set up when the person dies.


Q: There has to be some kind of legal paper trail.

A: The lawyer who drew up the trust may have a copy; but if you are not the client, the lawyer cannot discuss it with you.


Q: If the executor refuses to surrender, what recourse is there?

A: An executor is a person who handles a decedent's probate estate; that person may or may not also be the trustee of the trust. A trustee must always account to beneficiaries (since a trustee is a fiduciary), so if you are a beneficiary of a trust, you can sue the trustee for an accounting and for a copy of the trust.


Q: Also, there must be some way to prove that the document is the entity in question.

A: See answer above.


Q: Am I asking for trade secrets?

A: I really wish I knew some trade secrets but I do not. Go to Barnes and Noble and spend a couple of hundred bucks on books on trusts and probate and you will know as much as most lawyers.

 

[rmacki]

ROTF!

Thank you.

 

[rmacki]

after much research

Oregon
Trustee lives in Washington.

After much research I contacted my grandmother's attorneys in NM.
Here is the email sent without names.

I am contacting you on this matter for two main reasons;
1. Your firm represented my grandmother, Xxxxx Xxxxx, and I believe it would be fitting for your firm to represent the beneficiaries.
2. There is an open probate in the state of New Mexico for my grandmother's estate.

Since we spoke in May of this year there have been many discoveries. I will attempt to give you a time-line of events. I will do my best to be as concise and to the point as possible.

As you are aware your office drew up my grandmother's Will in 1985.
The 1985 Will named my mother Xxxxx Xxxxx (now Xxxxx) as the executor.

In 1991 my grandmother was living in Xxxxxx, Oregon and had a Living Trust drawn up by Xxxxxx Xxxxx (Xxxx, OR). We believe the Trustee is Xxxxx Xxxxx. We have no reason to doubt this. However the Trust was not fully funded.

In 1993 my grandmother passed away. My mother (Xxxxx) had the Trust transfered to an attorney in Medford, Oregon, Xxxxx Xxxxxx. I believe the reason for this was to make the Trust and herself the client of the attorney and further gain control of the information contained in the Trust. At this time she also had a copy sent to her sister Xxxxxx (Xxxxx) but to no other beneficiaries. This was told to me by Xxxxx's office. I spoke to Xxxxxx and he confirmed he had the Trust but that Xxxxx was his client and she would have to release it.

In 1994 my mom opened probate in Xxxxxxx Co. NM.
This is because oil and gas leases were in Xxxxxx and Xxxxxx Co.
My mom filed the old 1985 Will rather than the 1991 Trust.
She had her attorney in NM, Xxxxxxx, send out copies of the 1985 Will to the beneficiaries. This is confirmed by Xxxxxxx (now Xxxxxx) an active beneficiary.


Sept of '94 was the last communication Xxxxx said she has received regarding the Estate.
The letter from the NM attorney of Sept '94 states that income has run out and bills need to be paid etc.
Later in the same month my mother transfered the house owned by the Xxxxxx Xxxxxx Trust into the name of her and her husband Xxxxx Xxxxxx.

We also have evidence of an open and active estate bank account.

My brother, Xxxxxx Xxxxxxx and myself are remainder beneficiaries of the 1985 Will. I remember my mom letting me read one page of the Trust that named me by name to receive items from my grandmother.
My mom refused to let me read any more.

Last March I emailed my mother twice requesting to see the Trust and followed up twice with phone calls. She has refused. To my knowledge only she, her sister, and her lawyer have seen the Trust in it's totality.
The only beneficiaries or remainder beneficiaries I have spoken to about this are my brother Xxxxx, and Xxxx. Xxxx has spoken to Xxxxxx (Xxxx's widow)

What we would like to see is:

The Trust.
An accounting.
A voluntary or court ordered dismissal of my mom as Personal Representative/Trustee and an appointment of a trusted family member or family entity.

My mom lives in Washington state.

I was going to attach documentation but the files are too big to email. I will send them on CDR.

I will be out of town but will have my cell with me. xxx-xxx-xxxx.

Thank you for your review of this situation and recommendation.

Sincerely
Xxxxx Xxxxxx

The reply from my grandmother's attorney was; that even though there is an open probate in NM, it is out of their jurisdiction.

Q:
1. What do we do?
2. Aren't there laws against this behavior?
Any advice would be appreciated.