Trustee non-compliance

[Samiam2814]

What is the name of your state? Florida

Father passed in 2014, he had a prenup stating that his home in Florida was purchased solely by him, he pays all bills associated with the house and his wife gives up all claims to the property. It is a valid document drawn up in Kentucky where they lived before purchasing the house in Florida. He also has a trust set up stating the same as does his will.

All property is to be sold and 20% to each of his children, there are 5 of us. My brother is the trustee / executor and I am named as second. Three of his children live in Ohio (including Trustee)' one in Florida (who recently passed away) and I live in Arizona. The "trustee" did not follow my father's wishes, instead he allowed the a wife to remain in the house and also paid the bills for six months. He's replaced the HVAC, the water softener, irrigation system and the garage door (as far as I know). The homestead law in Florida states she has to be able to be financially responsible for all bills / repairs.

We discussed at length what his final wishes the week before he passed and he was not mentally impaired. The supporting documents make that very clear. At this point in time, five years later, she is still in the house at the age of 90 and very active. She could outlive us all.

I have 2 questions:
1) is it possible for the house to be sold without the knowledge of one of the five listed in the Trust?
2) As the trustee I under stand that there is an annual accounting due and I've requested one several times with no compliance, what course of action should I take?

I could give many more facts and ask many more questions, but I'll start there.

Thank you for any Advice!
Sam

 

[LdiJ]

If the house is worth enough to make it worthwhile, then you might consider hiring an attorney to try to force the trustee to act as the trust requires.

 

[justalayman]

A trustee is not the same entity as an executor (or administrator or personal representative) of an estate in probate.

So, to start with you need to separate the two issues and figure out which applies. You are not clear at all regarding whether the home was in the trust or an asset of the estate. The trust documents do not control what happens to the estate and the will and actions within probate do not control the trust short of the possibility of the initial actions of probate. Once the trust is established and funded per the will, the estate is no longer involved with the trust.


Regarding the prenuptial

. . 732.702 Waiver of spousal rights.—
(1) The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. The requirement of witnesses shall be applicable only to contracts, agreements, or waivers signed by Florida residents after the effective date of this law. Any contract, agreement, or waiver executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where it was executed, whether or not he or she is a Florida resident at the time of death. Unless the waiver provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, by the waiving party in the property of the other and a renunciation by the waiving party of all benefits that would otherwise pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the written contract, agreement, or waiver.
(2) Each spouse shall make a fair disclosure to the other of that spouse’s estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.
(3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.

So has anybody endeavored to determine if the prenuptial is enforceable? Has anybody attempted to enforce it in any way?


Bottom line: your brother can get away with doing pretty much whatever he wants unless he is challenged by a party with standing. If you have allowed his actions to go unchallenged, the problem lies in your inaction. Given what you have posted, i suspect hiring an attorney would be your next step.

 

[justalayman]

If the house is worth enough to make it worthwhile, then you might consider hiring an attorney to try to force the trustee to act as the trust requires.

In Florida, the widow has a right to an elective share. Depending on all of the facts, the trustee may be acting as the law requires, at least regarding the spouse living in the home. I’m not knowing enough of the law to speak comfortably about it but even if i was, the best direction is to point the op to hiring a lawyer. The issue can be complex and depending on whether the brother is acting improperly due to ignorance or intent, it will likely change the actions of the op.

He needs to speak with a lawyer.

 

[Samiam2814]

The house is in the trust and the prenup is valid per attorney. The problem is my brother, the trustee, has provided no accounting as requested and had not followed the guidelines if the trust. We are all five listed on the trust @ 20% each. Can he sell the house without my knowledge? Did he, legally, have to provide an annual accounting?

 

[bcr229]

In Florida real property tax and assessment records are available online. Do a Google search on the name of the county + "Florida real property tax record search" and in the first few results you should get a page where you can look up who owns the house now.

 

[Samiam2814]

My question is, since the house is in the name of the trust and the five heirs are on the trust, is can they sell it without my knowledge??? Also does the trustee have to provide an annual accounting to the other heirs???

 

[justalayman]

My question is, since the house is in the name of the trust and the five heirs are on the trust, is can they sell it without my knowledge??? Also does the trustee have to provide an annual accounting to the other heirs???

Do you have a copy of the trust documents?

The trustee is bound to act in a manner consistent with the directives written in the trust documents.

But the simple answer is: yes, the house could be sold without your knowledge. The trustee has the ability to do exactly that.


I would have to check on whether the trustee must provide an annual accounting without being asked for it but they surely do if a beneficiary requests it.

 

[Samiam2814]

I do have a copy of all of the documents, including the trust. I assumed we would all have to sign to sell the house but you're saying this isn't true. If you were in my shoes what would you do? Would I have to seek legal assistance in the state of Florida? How exactly could he sell without my consent? Thank you for a straight answer that you've already given. I've asked for an accounting several times with no results.

 

[justalayman]

I have no idea what the trust says so I can’t even suggest what you should expect or do.

The trustee can sell without your consent because the trust owns the property and the trustee controls the trust.

Whether it was a permissible action is dependent on what the trust allows.

You need to ask for an accounting in writing. If he doesn’t provide one you would have to go to court and seek the court order him to provide you an accounting.

If the trust is in Florida, thst is where you would have to seek assistance and if you need to go to court, it would be a Florida court.

 

[Dandy Don]

Your verbal request for the trust was sufficient, but it's fairly obvious that he appears to not want to cooperate with that request. Your next step is to make the request for the accounting IN WRITING, or ask your attorney to write it on your behalf.

He has the power to sell the home, but it is not necessarily proper for him to do so. Read the language of the trust to see if it says anything at all about how the home is supposed to be handled. Does it give permission for the home to be sold or does it say nothing at all about the home?

Also look and see if a trustees bond is required to be obtained, or whether the bond requirement is exempted.

It's not clear from your posting exactly what state your father died in. Do you have any evidence that your brother has begun probate in Florida? Check the county court records online for the applicable Florida county to do a case search of court records (by entering your father's name) to see if he has opened up a probate proceeding in Florida.

 

[justalayman]

I’m presuming the trust is in Florida. If not, this doesn’t apply

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0736/Sections/0736.0813.html

The trustee is required to provide an annual accounting.

Whether a verbal request is acceptable is not as important as being able to prove you sought an accounting. Make all such actions in writing. If it comes down to did you or didn’t you ask, if you have it in writing (and the mail is certified), you have proof you did.