Legal Question in Wills and Trusts in California

You go to Probate court as it handles Trusts also. You move to have the Trustee [an executor is for a Will, not a Trust] replaced because of a clear conflict of interest, the new Trustee sues the son for the back rent [limit of $7,500 in Small Claims Court] and gets court's approval to sell the property . Before you go to court, have all the beneficiaries meet and try to agree on a common approach and splitting the costs; consider hiring an attorney to write a demand letter to the Trustee that he must resign or you will go to court and have him surcharged for the amount of the back rent and interest. The letter might involve about two hours of attorney work; that attorney can then advise you as to how to handle the rest of the matter. I would charge $150 per hour to do the work; almost any attorney with some knowledge of trusts can probably handle the case.

You should find a local attorney to review the trust documents to determine whether the trustee is acting within their authority. If the trustee is acting in their OWN best interests by allowing their son to live rent free it is possible to petition the court to have the trustee removed or to make orders to the trustee to get their son out of the house.

If the trust did not allow the son to be in the house rent free then the trustee should be "surcharged" for the reasonable rental value of the house. In other words the trustee should be charged for the rent that the trust would have received had the trustee properly rented the house to a third party during the same period of time.

If the trust provides for the property to be either distributed or sold and the proceeds distributed to the beneficiaries you could also petition the court to order the sale of the property.

In short, you need to consult with an attorney to review the trust and give you your options.

Let me know if you would like to discuss this matter.

Caleb

You will need to file a petition in the Probate Court to force the Trustee to account with respect to the house and to surcharge him for any inappropriate benefits that he gave to his son. In light of what you say he has done, you may also want to request that the Court remove him as trustee. With respect to the sale of the house, you can either ask the Court to order the trustee (new or old) to sell it or, depending on the circumstances, you may want to ask it to be distributed to the beneficiaries so that they can sell it directly.

I would be glad to review your situation with you in more detail. If you would like to do so, please call me at 310.478.2541.

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I would strongly echo Attorney Donner's advice. Your first and most critical step is to consult with an experienced trusts and estates attorney and have that lawyer carefully review the trust document, any amendments and any related documents and information you provide. Only after reviewing the documents, can the lawyer begin to determine exactly what authority the trustee was given and whether and how the trustee breached his or her authority. Litigation would take place in superior court, not small claims court. The wisest lawyers will try to not only learn as much as they can before approaching the other side, but then invite a discussion with the executor (or his/her attorney, if he/she has one). the goal, in my humble opinion, is to resolve the matter without having to go to court. Filing suit without having your ducks in a row and without attempting a more economical solution, can be very costly, stressful and strategically unwise. If matters don't appear likely to get solved out of court, than and only then, may filing suit be your course of action. Please consult with a lawyer experienced in this area of law. Just some thoughts...

best of luck.