Is this conduct lawful?

[Tom_P]

What is the name of your state (only U.S. law)? California (Los Angeles)

I am the Trustee of my mother's estate/trust, set up as a "revocable trust" which became irrevocable upon my mother's death. There are four heirs (2 step brothers, my blood brother and myself).

I have recently found out that my two step brothers went over to my mother's house the day after she passed away and also the following day and went through my mother's personal belongings, files/records and hacked her computer. They live in Los Angeles but my blood brother and I do not. My mother passed away suddenly and both myself and my blood brother were on business trips. We didn't get to Los Angeles until the 3rd day following mother's death. My blood brother is also second trustee.

My question is was this entry into my mother's house in Los Angeles by my step brothers lawful?

If this entry was not lawful, would this be covered in California Probate Code or is it part of the California criminal laws?

My understanding is that only the first trustee would have legal rights to enter property (a house) of the trust, or the second trustee if necessary.

My mother passed away in July of 2006 and the trust was settled/closed in December of 2008 (all monies due the heirs were distributed to them). My step brothers are now raising issues and quoting from documents that would only have been found in her personal files (letters and correspondence) and her computer's email program. It is all circumstantial stuff and out of context information but they are raising issues now and have found a lawyer who is licking his chops at the fees on a contingency basis.

Cost of defence is an issue for me now as I have since retired and living on a very small fixed income. Your help and information is greatly appreciated and I thank you in advance, for your advice.

Regards,
Tom

 

[anteater]

My question is was this entry into my mother's house in Los Angeles by my step brothers lawful?

Well, no. But one has to assume that, if they had actually stolen something, you would have addressed that while administering the trust. If all they nabbed was information, I don't think that you will get anybody very interested.

I am not in CA and can't recall off the top of my head what CA requires for settling a trust. But, did you provide an accounting? A settlement agreement?

 

[tranquility]

What they did was wrong and could have been appropriately dealt with years ago. Now it is too late except for a lawsuit by the estate for damages based on the intrusion with the SOL potentially tolled by you not knowing or should have known of the intrusion. (Assuming the trust was completely funded.)

But, there are no real damages to the estate/trust. Now you have to deal with your problem and it looks like they have some evidence against your actions. Get an attorney. Fiduciary breaches can be costly.

 

[curb1]

You said, "they are raising issues now". What kind of issues are they raising? Are those issues valid in your opinion? Was something handled improperly?

 

[Tom_P]

Hi Guys,

Thank you for your information and comments. Most are useful and what I was looking for.

While reading over your comments I was once again struck by something that has happened many times over the last 5 years since my mother's passing. I have been struck by the notion that when it comes to lay (family/heir) trustees or executors, the prevailing opinions of the legal community are that we are "guilty, until proven innocent." Isn't that the opposite of what the laws of these United States are supposed to hold true, that you are "innocent until proven guilty?"

But I am now used to this and I take no offense at some of your comments. Honestly, I do not. I believe this is something that results from the fact that it is highly likely that most lay trustees/executors do abuse their percieved "power" over other family members from simply "getting even" over years of in-family bickering, to out right defrauding their brothers/sisters from funds due them. I can't control what others have done. I can control what I do. Ditto for how others think, and how I think.

That being said, a few comments are in order:
1. This "intrusion" occured in July of 2006. It is now 2012 and I found out about it only a few weeks ago. I have no idea if things were taken or that anything was taken of value. At this point in time, I don't really care about what items of value may or may not have been taken, as was noted, it is too late to really do much about it. Should I have known about this before now? I think that is a very big stretch.

2. Were some things done improperly? Of course, I am a lay family member trying to do a volunteer job of distributing my mother's assets to my brothers at her request. Would I have done things differently perhaps, five years ago knowing what I know now? Absolutely! Was their a fiduciary breach as trustee/executor (mother's assets were required to be settled through both the trust settlment process, AND California Probate, so I had two roles/titles)?
No. I did not squander assets of the trust, lose trust money, put it at risk of loss, or use it for my personal benefit in any way.

The sole purpose of my asking about the intrusion of my step brothers being lawful or not was in regards to a recent motion they have filed with the Probate Court, siting evidence they have in their possession, that could have only been obtained by them during this intrusion in July of 2006. It is circumstantial, out of context and grossly misinterpreted. But nonetheless, if they file the motion it costs me $1,800 - $2,400 to answer/oppose it. It would have been nice if I could contact their lawyer (since I now represent myself in these matters - I can do that) and let him know the evidence his clients are providing was obtained unlawfully. Perhaps he would reconsider his motion? Who knows? It was worth asking about.

I did have a lawyer throughout the settlement process from October of 2006 to June of 2009. He retired from practice in early 2010. He had been practicing estate law for more than 40 years in Los Angeles. I found out through my due-diligence on this man that he probably was responsible for personally training half of the lawyers now sitting as judges on the LA Probate Court benches. I thought that was pretty good credentials. He told me over the phone in a conversation just before he retired that he considered my estate case to be one of the most complicated of his career. He said it was rare to have a case settled in California through both the "trust" and the "probate" process. He also said that he had never seen a case where if "It could go wrong, it DID go wrong!"

What do I know? It is the only "case" I've ever known. It was all "normal" to me! LOL...... Kind of like root-canal is normal - if that's all the dentist ever does when you visit him/her? LOL......

Once again, thanks guys for your information and comments. All useful.

Best,

Tom

 

[curb1]

So, do they have a case, or not? What exactly are they accusing you of improperly doing?

 

[tranquility]

While reading over your comments I was once again struck by something that has happened many times over the last 5 years since my mother's passing. I have been struck by the notion that when it comes to lay (family/heir) trustees or executors, the prevailing opinions of the legal community are that we are "guilty, until proven innocent." Isn't that the opposite of what the laws of these United States are supposed to hold true, that you are "innocent until proven guilty?"

That has to do with crimes and certainly NOT people placed in a position of trust. (aka fiduciary) You have to show you did things right. You were given full control to decide how to handle their money and you think they should have the burden here?

1. This "intrusion" occured in July of 2006. It is now 2012 and I found out about it only a few weeks ago. I have no idea if things were taken or that anything was taken of value. At this point in time, I don't really care about what items of value may or may not have been taken, as was noted, it is too late to really do much about it. Should I have known about this before now? I think that is a very big stretch.

Not for someone who was tasked with securing the residence. In fact, that you didn't know may be evidence of your breach.

2. Were some things done improperly? Of course, I am a lay family member trying to do a volunteer job of distributing my mother's assets to my brothers at her request. Would I have done things differently perhaps, five years ago knowing what I know now? Absolutely! Was their a fiduciary breach as trustee/executor (mother's assets were required to be settled through both the trust settlment process, AND California Probate, so I had two roles/titles)?

Um..OK.

No. I did not squander assets of the trust, lose trust money, put it at risk of loss, or use it for my personal benefit in any way.

That should help from getting a multiplier on any damages from a breach.

The sole purpose of my asking about the intrusion of my step brothers being lawful or not was in regards to a recent motion they have filed with the Probate Court, siting evidence they have in their possession, that could have only been obtained by them during this intrusion in July of 2006. It is circumstantial, out of context and grossly misinterpreted. But nonetheless, if they file the motion it costs me $1,800 - $2,400 to answer/oppose it. It would have been nice if I could contact their lawyer (since I now represent myself in these matters - I can do that) and let him know the evidence his clients are providing was obtained unlawfully. Perhaps he would reconsider his motion? Who knows? It was worth asking about.

Stop talking about unlawful. You have no proof and, it really doesn't matter anyway. You have to work harder on proving you didn't breach your fiduciary duties and less hard at trying to prevent them from trying.

 

[anteater]

But I am now used to this and I take no offense at some of your comments. Honestly, I do not.

I am curious. I read my and the other prior responses a couple times. What was in there that might be interpreted as offensive?

 

[Tom_P]

Guys,

I came to this forum to ask a simple question about whether evidence obtained through what I thougt might be an unlawful entry would be admissable as evidence in a civil proceeding. I knew that evidence obtained unlawfully was generally not admissable in a criminal proceeding. This question should have been able to be answered with a "yes or no" answer. If the answer (in your opinions) was "maybe," then perhaps an example of a "maybe" situation would be helpful/useful.

I did not ask for help or opinions in general regarding actions by my step brothers and whether those actions are justified or not or whether they do or do not have "a case" are not, as this is something I don't need your opinions about. Your opinions would be useless to me unless I spent hours and wrote reams of pages on this forum of facts and circumstances. Is that not true?

Tranquilty: I have been a member of this forum for about a year. At times I enjoy perusing the various topics on this forum because I have a general interest in the law, if only from a lay standpoint. My mother was a surperior court judge assistant for 16 years and when I was in grade school I would walk from to school to the court house and sit in the back of the courtroom waiting for my mom to get off work and drive me home. I learned alot about people, AND the law in this way. - I have read many of your posts over the last year. You seem to like to make judgements and offer opinions, even when you have little of the facts. Sometimes your assumptions seem to be accurate but in my opinion, most of the time they are not. I have no idea if your are a lawyer or what your legal background may be. You forum icon says "senior member" so I assume you have many posts here. My opinion just expressed about you however, is based only on the posts you have written that I have read. Certainly that is not all of them.

Since you seem to enjoy making judgements, let's have some fun and actually make you the judge!

Before your bench is the following case: The plaintiff accuses the trustee of a fiduciary breach for failing to properly secure the residence of his deceased mother for two days following her death.

All of the basic information is presented.....I am the first trustee, the plaintiffs are two of the four heirs, date/time of death....yadda, yadda, yadda.

Here is the respondent's (me) sworn testimony before you: My mother apparently passed away in her sleep during the night on a Thursday. This was discovered by the latino gardener approximately 11am the next Friday morning. He called 911 from his cell phone and then went next door to the neighbor (whose yardwork he also did) because she was a trusted good friend of my mother and he thought she might have a key to the house because she fed my mothers cats when she was away for short periods (hospital or visiting friends). The EMT's arrive, my mother is transported to the hospital and she is pronounced dead upon arrival in the emergency room.
In the meantime, the neighbor calls the only relative contact telephone number she has, my step brother (one of the plaintiffs in this case). He in turn then calls me in San Francisco, leaving a message on my cell phone and on my work phone about my mother's passing. He also calls me blood brother in Florida and leaves a message on his cell phone, but when he also calls his home number his wife answers. He tells her the news, and tells her he's left messages for me. She informs him that she thinks I am out of town and that her husband is on a nuclear plant site (his company services nuclear facilities) and that cell phone communication is not allowed until he leaves the site at the end of the day. That night my brother in Florida gets the message from his wife. He also starts trying to reach me (it is now Friday night - somewhere between 12 and 24 hours from my mother's passing). However, I am not only out of town, I am out of the country. I am in Mosport Park, about an hour and a half drive NE of Toronto, Canada at an ALMS 24-Hour auto race (I'm involved with professional racing). In 2006, there was little or no cell coverage in rural parts of Canada. That was the case for Mosport Park at this time. My brother manages to get a message to the Mosport track administration and I get that hand written message about 9pm on Saturday night. Thankfully, my race team allows me to leave the pit box for a few minutes (I am the team's chief race strategist) and the track officials allow me to use their land line to call my brother in Florida. We talk for about a half hour, mostly about the loss of our mother. At the end of the conversation I tell him that I can't even get back to SFO until Sunday night. He tells me he can't get to Los Angeles until Monday night. We both agree that our presence in LA isn't going to bring back our mother. I ask him to call the neighbor to have her watch the house since my cell doesn't work. He agrees and says the house is now open at the back door (from the EMT entry) and she can feed my mothers cats. I get back to SFO Sunday evening. More calls to brother, neighbor, hospital. My Florida brother and I meet eventually at the LA house on Monday evening about 7pm. ***End of my sworn testimony.

So Judge Tranquility, am I guilty of fiduciary breach for failing to secure my mother's house between Saturday when I first got news of her death and Monday when I arrived at the house - or am I innocent? What is your ruling?

Best,
Tom

PS: Though we are playing a fantasy trial game above, my testimony as given are the exact facts of what actually happened after my mother's passing.

 

[curb1]

I'll ask again, "What exactly are they accusing you of improperly doing?"

 

[tranquility]

I've got a better idea. Maybe you can post some of my unwarranted judgments so we can see if they are reasonable or not. Including those here. I often use what are known as qualifying words to show I must assume some facts. Maybe you missed them. Also, with all your waiting for your mommy knowledge you can answer your own question.

For the facts you can use:

(My mother apparently passed away in her sleep during the night on a Thursday. This was discovered by the latino gardener approximately 11am the next Friday morning. He called 911 from his cell phone and then went next door to the neighbor (whose yardwork he also did) because she was a trusted good friend of my mother and he thought she might have a key to the house because she fed my mothers cats when she was away for short periods (hospital or visiting friends). The EMT's arrive, my mother is transported to the hospital and she is pronounced dead upon arrival in the emergency room.
In the meantime, the neighbor calls the only relative contact telephone number she has, my step brother (one of the plaintiffs in this case). He in turn then calls me in San Francisco, leaving a message on my cell phone and on my work phone about my mother's passing. He also calls me blood brother in Florida and leaves a message on his cell phone, but when he also calls his home number his wife answers. He tells her the news, and tells her he's left messages for me. She informs him that she thinks I am out of town and that her husband is on a nuclear plant site (his company services nuclear facilities) and that cell phone communication is not allowed until he leaves the site at the end of the day. That night my brother in Florida gets the message from his wife. He also starts trying to reach me (it is now Friday night - somewhere between 12 and 24 hours from my mother's passing). However, I am not only out of town, I am out of the country. I am in Mosport Park, about an hour and a half drive NE of Toronto, Canada at an ALMS 24-Hour auto race (I'm involved with professional racing). In 2006, there was little or no cell coverage in rural parts of Canada. That was the case for Mosport Park at this time. My brother manages to get a message to the Mosport track administration and I get that hand written message about 9pm on Saturday night. Thankfully, my race team allows me to leave the pit box for a few minutes (I am the team's chief race strategist) and the track officials allow me to use their land line to call my brother in Florida. We talk for about a half hour, mostly about the loss of our mother. At the end of the conversation I tell him that I can't even get back to SFO until Sunday night. He tells me he can't get to Los Angeles until Monday night. We both agree that our presence in LA isn't going to bring back our mother. I ask him to call the neighbor to have her watch the house since my cell doesn't work. He agrees and says the house is now open at the back door (from the EMT entry) and she can feed my mothers cats. I get back to SFO Sunday evening. More calls to brother, neighbor, hospital. My Florida brother and I meet eventually at the LA house on Monday evening about 7pm.

Apparently, brother would have been a better fiduciary. He knows how to get a hold of people. As for the testimony, I bolded the part you could testify to. Everything else, start gathering evidence. But then, it doesn't matter. The failure to secure issue is not going to cost you anything as the damages don't seem to be flowing from anything stolen.

Get ready to deal with the evidence they will present in a factual way. You will not get it excluded for improper gathering. You suspicions on that matter are not proof. When someone says there is no other way, except for rare instances (like barrels of flour falling on someone's head) that is what is called "speculation" and would not be admissible.

 

[Tom_P]

Curb1: It is a typical laundry list of things I could have done differently. All typical "Monday morning quarter backing.....hinde site is 20/20 stuff." So far, no details or evidence of a specific nature. They have all the bank records (given to them by me) and a formal account (prepared by a CPA) and all back up records for the account. Now they are claiming the CPA was intentionally covering up for me. LOL..... I wish I had the time to go into all the details here as this case is probably worth disecting for just for learning purposes regarding estate laws in California....what the law says vs how it is actually working in the courts. The desparity is quite amazing, IMHO. But I just don't have the time to do that at this point.

Tranquility: Really?

Best,
Tom

 

[tranquility]

Tranquility: Really?

Yes, really. Which part are you confused about?