Legal Question in Wills and Trusts in California

Dad died in 2006 in Orange County. There are three children. Each inherited a 1/3 interest in a Commercial Building in Riverside County. The title of the building was in each of the trusts, 1/3 for the benifit of each child. Brother was sole trustee of his trust yet Co-trustee of each of the 2 sister's trusts. I am one of the sisters. My brother was depositing each of the rent checks from the commercial building into his personal checking account and determining what each sibling should receive as their portion. My brother collected approx. $30,000 in rents for 2010. I received about $1,000. I started asking my sister and brother in 2010 to buy me out or sell. They ignored my requests. I was forced to sue in a Partition Action in Riverside County. I noticed that my brother was using my portion of rents to fix the building up without my permission/knowledge/approval in 2010. He also had an ATM card and took many withdrawals. Therefore, I sued (in addition to the partition) for punitive damages, breach of trust, and for court costs. My sister and brother bought me out about 2 weeks after they received the Summons. Neither bothered to answer the Summons. I filed a default asking for a dismissal on the partition and punitive damages. Yet I indicated that I wanted to continue to pursue $6,000 in back rents for 2010 and approx. $900 in court costs. My brother hired an attorney. He just filed a motion to set aside default. I haven't received it yet so I don't know what it says. The court date is in early Sept. I live in Contra Costa County. So I think continuing with this lawsuit would mean at least two more trips to Riverside. I really don't want to go two more times but I will if I have to because it was not fair for my brother to use my rent monies as he wished without asking me. He just took it. What I would like to know is if I decided to dismiss the case entirely without prejudice could I sue my brother for the back rents ($6,000) in Contra Costa County Small Claims Court? My brother and I are Co-trustees of my trust which is for my benefit. The only money I get is about $500 a month from a Trailer Park in Texas. I get a check monthly written to my trust. I deposit it in my Trust Account at the BofA in Contra Costa County. My brother lives in Orange County. I am assuming that my Trust is administered in Contra Costa County where I live and where the checking account is located. All I have is a Trust Checking Account. I don't have any written trust document. If I can file in Contra Costa County, then the long trips down south could end and my brother would have to come here for a change. Thanks for your help.


Asked on 7/08/11, 5:50 pm

1 Answer from Attorneys
George Shers Law Offices of Georges H. Shers

I would seem to me that since the building is in Riverside, your brother lives there and makes all his decisions there, etc., jurisdiction is there and not up here. You need to calculate what

your damages are. Demand an accounting for the entire period of time as you may be entitled to $10,000 per year since 2006 [$50,000]. Your brother putting the rental income into his personal checking account is a violation of his fiduciary duty; you could surcharge him as to any fees he has gotten or intends to as trustee. Why have you not run the Trust with him if both of your are co-trustees?

He has a good chance to set aside the default; the court would not award you any punitive damages on a default without a prove up hearing. It sounds as though you need an attorney to help you. There are several things you need to do. I charge $100 per hour and would be happy to help you on the case. You can give me a call at 510-441-2684 for a free initial consultation.

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Answered on 7/09/11, 7:25 am


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