Revocable Living Trust - Trustee

[Cherpa]

What is the name of your state?What is the name of your state? CA. My brother had a Revocable Living Trust drawn up in California several years ago designating his surviving siblings as the only beneficiaries. He then moved to Montana where he passed away in January, 2005. We were immediately told that one of the beneficiaries, another brother, is the trustee. We were also told the trust allows him to live in the home of our deceased brother as long as he wishes, and while there, the trust will pay his expenses. In January, the trustee said he would send copies of the trust. None of us received a copy. We wrote to him in mid-March and asked for copies. Still nothing. In early April, his son sent an email saying his father had been very ill and it was questionable his father would survive his ailments. Under the circumstances, it would seem improbable he would be able to carry out his responsibilities as trustee. What should our course of action be? We still don't have a copy of the trust. Have we given the trustee enough time to provide one? Can we be included as trustees? Would we have to retain an attorney in California where the trust was made, or could we retain someone in Montana? We range in age from 78 - 84, and live in four different states, from the East Coast to the West Coast. Your comments will be sincerely appreciated.

 

[BlondiePB]

What is the name of your state?What is the name of your state? CA. My brother had a Revocable Living Trust drawn up in California several years ago designating his surviving siblings as the only beneficiaries. He then moved to Montana where he passed away in January, 2005. We were immediately told that one of the beneficiaries, another brother, is the trustee. We were also told the trust allows him to live in the home of our deceased brother as long as he wishes, and while there, the trust will pay his expenses. In January, the trustee said he would send copies of the trust. None of us received a copy. We wrote to him in mid-March and asked for copies. Still nothing. In early April, his son sent an email saying his father had been very ill and it was questionable his father would survive his ailments. Under the circumstances, it would seem improbable he would be able to carry out his responsibilities as trustee. What should our course of action be? We still don't have a copy of the trust. Have we given the trustee enough time to provide one? Can we be included as trustees? Would we have to retain an attorney in California where the trust was made, or could we retain someone in Montana? We range in age from 78 - 84, and live in four different states, from the East Coast to the West Coast. Your comments will be sincerely appreciated.

You will require a trust attorney in CA. The trust can pay for the attorney. Also, check with the probate division of the courthouse under deceased name in the county where he resided. You may luck out and find that a copy of the trust has been filed with the court. For a fee, you can a obtain copy of the file(s).

 

[Cherpa]

CA. Because of our age and own health problems, it would be too far for any of us to travel. Can we contact an attorney in the county our brother lived in and do whatever we need to do by phone? If necessary, one of our adult children can stand in for us. If so, would it be better to sign a power of attorney or a temporary guardianship? Thanks for any information you can provide.

 

[BlondiePB]

CA. Because of our age and own health problems, it would be too far for any of us to travel. Can we contact an attorney in the county our brother lived in and do whatever we need to do by phone? If necessary, one of our adult children can stand in for us. If so, would it be better to sign a power of attorney or a temporary guardianship? Thanks for any information you can provide.

Yes, contact an attorney in the county where your brother lived. All this can be done via phone, fax (buy one if necessary), email, and snail mail. This is best to be done by you, yourself, as you want to read any and all papers prior to signing. This is something that is too important to have anyone other than yourself (along with and in agreement with the other beneficiaries) do by another person to "stand in" for you all.

 

[Cherpa]

CA. My brother had his trust drawn up before moving from California to Montana. My sister just told me that a few days ago, she was able to get a copy of a quitclaim deed transferring his Montana home to the trust. She called Montana attorney who did the legal work for him, but attorney wouldn't give out any information, accept that the trustee is not his client. Has the use of a Montana attorney affected the trust in any way? Does this mean we can hire a Montana attorney too, or just a California one? Thank you.

 

[Dandy Don]

Since the first trust was drawn up in California, you need a California trust attorney and it is California law that applies.

The fact that brother trustee did not give beneficiaries copy of the trust is most suspicious--let's hope that he has not stolen the beneficiaries money and trying to keep it secret in the hopes that he will not be discovered. You need to be asking your trust attorney whether the fact that brother did not provide beneficiaries a copy is that a breach of fiduciary duty or not, and you also need to ask your attorney whether you can require this trustee to post a trustee's bond to protect the financial interest of the beneficiaries. And your attorney also needs to be asking for a copy of the trust tax return (to insure that one has been filed) and a copy of the latest bank account statement that shows the balance that is in the trust now--get as much information as you can now while trustee is still alive.

The stipulation to requesting a copy of the trust (and an accounting statement for each year that the trust has been in existence) is that the beneficiaries must make their request to the trustee by CERTIFIED MAIL, but if he were honest he could have responded to the normal request you made by regular mail.

DANDY DON IN OKLAHOMA ([email protected])

 

[BlondiePB]

Cherpa,
Yes, call an attorney in CA. Due to the gravity of your brother's condition, he may not be able to provide an accounting of the trust. Have the attorney obtain all records for the trust. The attorney can have a CPA do an accounting of the trust. Hopefully, the trust has provisions for a sucessor trustee.

 

[Cherpa]

We've spoken with several attorneys--almost all said they were too busy to take on any new cases. A couple asked a few questions, but never called back. One said he would do some preliminary research/phone calls, then let us know if he wanted to represent us--We hope to hear from him today. All wanted to know the size of the estate, which we can only guess at. We just want to make sure the terms of the trust are carried out the way our brother intended. Legally, what more can we do if we can't find an attorney to represent us?

 

[Dandy Don]

What city and what county in California are you referring to? There is no way you can get this resolved without getting an attorney. There are so many California attorneys that it shouldn't be too difficult to find one that is not busy.

Are you using computer databases (the FIND AN ATTORNEY NOW link shown on the freeadvice.com home page, or martindale.com, or the California State Bar Association website to search for attorneys?) or are you just looking in the phone book?

It helps if you have idea of the size of the trust to entice an attorney to work on your behalf. Does the quitclaim deed show the value of this man's home? That would be a start.

DANDY DON IN OKLAHOMA ([email protected])

 

[Cherpa]

CA. Thank you Dandy Don and Blondie PB for your help. This afternoon we heard from an attorney we spoke with a few days ago. He said he will represent us. We have the option of going with an hourly rate or a contingency fee. At this point, not having any further information about the health of our brother (the trustee), we think the contingency fee would be the better way to go. We will be speaking with the attorney on Monday to finalize this. We really appreciate your advice.

 

[Cherpa]

CA. After discussing attorney's fees--hourly vs. contingency--we decided we didn't know enough about this type of situation and are uncomfortable making the choice by guessing at whether it will be resolved fairly quickly, or is usually a long, drawn out process. We are still in the dark as far as the trustee's health, and what might be happening to the trust. The meeting (phone call) with our attorney was postponed until Wednesday. When we speak with him, we would like to feel we've made the right decision. We would be very grateful for any information and/or recommendation.

 

[BlondiePB]

CA. After discussing attorney's fees--hourly vs. contingency--we decided we didn't know enough about this type of situation and are uncomfortable making the choice by guessing at whether it will be resolved fairly quickly, or is usually a long, drawn out process. We are still in the dark as far as the trustee's health, and what might be happening to the trust. The meeting (phone call) with our attorney was postponed until Wednesday. When we speak with him, we would like to feel we've made the right decision. We would be very grateful for any information and/or recommendation.

It would be very inappropriate to advise you about which type of fee to accept - hourly or contingency. Should trustee co-operate and, with the assistance of his family, provide the attorney with the requested information AND should the trustee (or his estate) not have any litigation for mismanagement/embezzelment, then it will not be a long, drawn-out process.

If you know how much the house was worth, then you can have an idea of the cost of the contingency. By guesstimating the value of the trust with the percent of the contingency, you can then divide the hourly rate and determine how many hours the contingeny fee would add up to. Whatever you choose to do, it will be the right choice. So, do not have any regrets.

 

[Cherpa]

CA. Thank you BlondiePB. Our attorney says we will probably have to resolve this in court. He wrote the trustee--no response. We are unable to find out the status of his health. The contingency fee for representing us is going to be around 30% of our portion of the estate. Is this typical? Your comments are greatly appreciated.

 

[seniorjudge]

CA. Thank you BlondiePB. Our attorney says we will probably have to resolve this in court. He wrote the trustee--no response. We are unable to find out the status of his health. The contingency fee for representing us is going to be around 30% of our portion of the estate. Is this typical? Your comments are greatly appreciated.

30% sounds pretty low but if you can get him for that, then go for it.

These kinds of cases are rarely moneymakers for the lawyer since every body and his brother will harass the lawyer to no end wanting to tell their side of it.

That costs the lawyer a lot of money fielding all those calls, etc.

In any event, get a complete written contract with the lawyer so you will know exactly what he is going to do.

 

[Cherpa]

Thank you seniorjudge. We are encouraged by your comments, and have decided only one of us will contact our attorney about any questions we may have. We appreciate your input.