Finally!!!!!!!!!!!!

[oneson1118]

What is the name of your state (only U.S. law)? Ca.
Hello,
I have been dealing with my brother as successor trustee now for 3 1/2 years. I have been trying to get an accounting of our father's trust and have finally received some paperwork that seems fairly simple to understand and possibly is the only acounting of the assets I am liable to get. It is in my mind not a very legal or binding document, but it seems to be a complete list of what my father's lawyer believed his assets to be. Basically, it adds up to about $1,242,238.00 with $750,000.00 of that being the house. There appears to have been around $425,000.00 in life insurance, money market IRAs and cash.
2 mos. ago I hired and attorney to try and compel my brother to give me an accounting. A letter was sent and my brother responded by saying that he had tried to deliver to me a "long hand accounting of everything" and that he believed that I had recieved it and was surprised to hear from my lawyer. It was, he said, another attempt by me to "take over the trust" and he gave my lawyer some paperwork that my lawyer said was just some bank statements and didn't add up to much.
My lawyer filed a petition to have the court order my brother to give me an accounting and a court date was set for Sept 8th, 2008. On Wed last, my brother e-mailed me, the gist of which was a "fair proposal to settle the trust and keep the lawyers from getting all the money". In my brother's eyes, fair meant that I would get $35,000.00 cash, ownership of one of the timeshares, and 50% of whatever proceeds were left after selling the house which has a $350,000.00 mortgage, (and may not be worth much more than that).
I e-mailed back that he had 3 options,
1. Give me a full and true accounting by a paid professional.
2a. Say no and go to court and let the chips fall where they may.
2b. Say no and confess fudiciary "irresposibility" sign what is left over to me and stay out of jail. ( I have no idea whether jail is even an possibility but it felt good to write that).
I then received a phoine call where my distraught brother gave me the sob story of how he didn't know what he was doing and the debts were piling up and he can't make the mortgage and blah, blah, blah... I told him to bring me every scrap of paper he has and I if I didn't like what I saw it was going to be trouble.
Whew, sorry if I got longwinded, so he comes over, and pulls out some paperwork, says this is what I gave your lawyer and most of it is crap, like my lawyer said. Tax return for 2005 (dad died in Jan '05 so it didn't have much on it), existing mortgage from my dad, new mortgage from my brother refinancing it (added $180,000.00 in debt) and one piece of paper from the lawyer that set up the trust for my dad, a "summary of estate assets dated 8/21/2006". My brother had told me that he fired this particular lawyer in Aug. '05 because she was unresponsive and expensive. This list showed several life insurance policies, cash accounts, and money market funds. sources for the info, amounts and statments needed by the lawyer that my brother was to provide.
Ok, here is my question, what do I do now? I am very concerned that my brother has either spent or has stashed in some account I am unaware of and have no access to a sum of somewhere in the neighborhood of $300,000.00 The one account that he has given me statements for show him using it for personal use in Tahoe, Reno, Home Depot etc... He also has invoiced the trust for work he says he did to the house to the tune of around $64,000.00. Combined with the withdrawals it comes to around $160,000.00. Has he committed a jailable offense? How can I ever know for sure how much money there was to start with and what there is now??? There are probably questions I do not even know to ask, and here is another, my lawyer has not given me a receipt for $1,300.00 that I paid to him, hasn't called me since I paid him, ( I have asked for the receipt and called him) and has not responded to my e-mail about the case. Also, I believe that he got the document that shows the amount of the estate and he said it was worthless...Was it??? Sorry to lay so much on you guys but any help would be greatly appreciated at this point.What is the name of your state (only U.S. law)?

 

[oneson1118]

CA.
Did I go on too long?? I aplogize. My main question is, if my brother did spend money for personal benefit, can I use the threat of jail to try to get him to show me everything that is left and decide if he has gone thru his "1/2" of the trust???

 

[curb1]

Very interesting summary. My advice is to keep this as civil as possible with your brother. This type of situation can be eaten alive by attorney involvement. Make that clear to your brother. There is still time to work this out if he can admit to spending "his half" of the trust assets. "Your half" should still be intact if you keep it civil. There is a good chance that he is playing the "I didn't know what I was doing" so he can cover his withdrawals. I think you realize this.

In as amicable a way as you can muster, get the accounting of the assets at the day of death. That has to be the starting point. If this doesn't sit right with you, get an accounting of the assets one month before death. They should match. You need to get very specific. Actual statements from insurance, bank and brokerages that he has. If he doesn't have them, he can request copies from the different institutions. Then build from there.

If there is no cooperation, get him removed as the Trustee. Tell him that the courts will be involved and after expenses he could end up with nothing.

From personal experience that has happened to an estate in our family right now. Estate value was $414,000. Attorney fees/court fees have now gone over $250,000 and it is still not settled.

 

[oneson1118]

Thank you very much curb 1. I am about to call him and tell him I expect that he not use any more money from the one account that he has showed me which still has around $35,000.00 in it. I believe he is sufficently chastened that he at least will stop spending. Thank you again for your help.

 

[seniorjudge]

Do everything in writing.

 

[BlondiePB]

Do everything in writing.

Just to add to that SJ, send everything both CRR and regular mail.

 

[oneson1118]

Thank you sj and blondie. My lawyer contacted me and is of the opinion, and I agree, that we should go to court and get the petition ordering the accounting to as it is the only way to keep my brother from stalling and is the only way to prove "malfeasance of office". How do I keep him from spending any more money from here on out?? Is there a way?

 

[anteater]

How do I keep him from spending any more money from here on out?? Is there a way?

The fox is in the hen house covered in feathers and asking for some Tums. And you are going to let him stay?

Why not go all out and ask for removal?

 

[TrustUser]

knowing that you are willing to take him to court, might he be willing to voluntarily remove himself ? that would be a lot better than his option of going to court.

 

[Dandy Don]

You gave him all the chances in the world to provide an official accounting. Wake up and smell the coffee. He never will provide one since he doesn't want anyone to uncover his theft. Now he has to face the consequences for what he has done.

Can you afford to hire a new trust attorney who has experience in bringing breach of fiduciary lawsuit charges against this trustee?

Did you sign a fee agreement with the attorney you paid the $1,300 to? Your check can be your receipt and you don't necessarily need to get a receipt from this attorney. His failure to respond to your phone calls is unprofessional; don't you think you should be shopping around for someone else? He can't get blood out of a turnip and he can't FORCE your brother to do something he has no intention of doing.

Do you even have a copy of the trust? Does it require a trustee's bond to be posted to protect the financial interest of the beneficiaries or does it exempt the bond? Have you been asking for copies of the trust tax returns as well?

You may also want to consider asking the court for an audit of the trust so you can have evidence to bring against him later in court and he won't be able to brush off the auditor like the BS he has been giving you.

And you need to discuss with your attorney whether it is financially feasible for you to wait for your payout from this trust or go ahead with the lawsuit, as it is possible that trustee's attorney fees to defend himself and the cost of an audit will be deducted first from the trust assets before any of the beneficiaries get paid.

How can you say the house share of the trust is worth $750,000 and then later say it has a $350,000 mortgage and is not worth much more than that?

DANDY DON IN OKLAHOMA ([email protected])

 

[oneson1118]

You gave him all the chances in the world to provide an official accounting. Wake up and smell the coffee. He never will provide one since he doesn't want anyone to uncover his theft. Now he has to face the consequences for what he has done.

Can you afford to hire a new trust attorney who has experience in bringing breach of fiduciary lawsuit charges against this trustee?

Did you sign a fee agreement with the attorney you paid the $1,300 to? Your check can be your receipt and you don't necessarily need to get a receipt from this attorney. His failure to respond to your phone calls is unprofessional; don't you think you should be shopping around for someone else? He can't get blood out of a turnip and he can't FORCE your brother to do something he has no intention of doing.

Do you even have a copy of the trust? Does it require a trustee's bond to be posted to protect the financial interest of the beneficiaries or does it exempt the bond? Have you been asking for copies of the trust tax returns as well?

You may also want to consider asking the court for an audit of the trust so you can have evidence to bring against him later in court and he won't be able to brush off the auditor like the BS he has been giving you.

And you need to discuss with your attorney whether it is financially feasible for you to wait for your payout from this trust or go ahead with the lawsuit, as it is possible that trustee's attorney fees to defend himself and the cost of an audit will be deducted first from the trust assets before any of the beneficiaries get paid.

How can you say the house share of the trust is worth $750,000 and then later say it has a $350,000 mortgage and is not worth much more than that?

DANDY DON IN OKLAHOMA ([email protected])

First, let me say thank you for taking an interest in my case DD, Yes to the ability to pay for an attorney with the specified experience.
No to the fee agreement. I have the cancelled check, but I was under the impression that the billing was no where near that amount yet, so I was asking for an invoice to see where we were at. I do now think I should be shooping around for another attorney, and he had advised me that getting the petition was the first step, even though he believed that my brother would not comply as you have suggested.
I do have a copy of the trust and have read it several times and there is no mention of a bond, either obligating the trustee to get one or exempting him. Yess, I have assked for the tax returns as well, many times.
I will talk to the attorney about the audit, and whether or not to wait for the payout or go with a lawsuit.
As for the house, my dad listed the house as an asset worth $750,000.00 in 2003 or 2004, and I think that the appraiser was being pretty generous. Now with prices dropping in the bay area in the range of 30 to 40%, combined with the condition of the house after 3 1/2 years of my brother living in it and my best guess is that if I were to sell it I might be able to get $350,000.00 to $400,000.00 for it.
WOW...I just got off the phone with my brother's wife. He wants to sign everything over to me, including the beneficiary check he gets from my dad's retirement account with CALPERS. I do not even know if that is legally possible. He totally admits his wrongdoing, but is trying to say that there never was that much money. Now I really do not know what to do. I imagine that you all will advise going to court and getting the accounting ordered by the court anyway, and I will but should I take advantage of this?? Can I legally??? Geez what a mess, and I got a crappy lawyer too...I am starting to think maybe my dad didn't like me very much...

 

[oneson1118]

thank you anteater and trustuser. I assume that you mean like right away anteater???Is it possible to ask the court to order him removed immediately? Do I need to now that he seems to want to go? I know I am asking alot of questions so if it is too much just tell me and I will stop. Again thanks everyone for your support and help.

 

[curb1]

I say be as nice as you can be at this point. Give him some slack (like a week) to see how this washes out. Family is more important than money. Perhaps he has considered that the money spent was from his half of the inheritance. At the same time look over the information very well and the asset value at the time of death to see where you stand.

 

[curb1]

You will find out how sincere he is if he turns over being trustee to you. As trustee you will be able to distribute according to the trust minus what he has exploited.

 

[oneson1118]

That is easily done curb1, you are right family is more important than money. It won't take long for him to start showing some goof faith at this point. Since the the trust beneficiaries are limited to my brother and I, and it is apparent that he has taken way more than his share, is there even a trust left to distribute? If I keep the house and it goes up in value would he later have a claim to it? Thank you again curb1 for checking back in with this.