Legal Question in Wills and Trusts in California

This is all standard; the trustee's attorney represents only the Trustee (who has what is called a fiduciary duty to deal with all the beneficiaries impartially, honestly and in good faith) and it is perfectly proper for the attorney fees for administration of the trust to be paid from the trust estate. It doesn't mean there is an adversary situation between you and your trustee brother, but if you have any reason not to trust him or are not sure whether the Distribution Agreement is fair, you should retain your own attorney to review it, along with the Final Accounting, etc.

Mr. Cusack is correct. The trust has no legal existence. It is a set of directives, not a legal entity like a corporation. A trust can no more have a lawyer than a contract can have a lawyer. The trustee is the person who must perform the acts to implement the trust. When he or she must hire a lawyer to do that, he or she is entitled to reimbursement from the trust. That is why the fees are paid out of the trust. That does not make the lawyer the lawyer for the trust or the beneficiaries. The lawyer is the lawyer for the trustee. While this is not an adversary situation, it is one in which the trustee's interests are not entirely aligned with the beneficiaries, in that there are probably terms regarding releasing the trustee from liability, etc. So it is a good idea to have your own attorney look over the document.

Mr. Cusack is correct that your situation is very common, but your brother's attorney does have perhaps a potential conflict of interest in that he represents your brother as an individual in drawing up his own Trust and representing your mother's Trust. But the two are really separate items in that the work he would do for either activity does not intersect the other. His work to create a trust for your brother does not overlap in giving advice as to your lmother's Trust, except the suggestion that he is going to be maybe somewhat less impartial as to your brother since he is also a client. But attorneys hilred to help on Trusts or Wills always tend to favor those who hire them as opposed to beneficiaries.

The attorney usually represents the Trustee/Successor Trustee in the administration of the trust. The trust document itself ordinarily allows the Trustee/Successor Trustee to employ an attorney and to pay for these legal services from the trust assets. Its not really a case of "us v. them" but, instead, its an acknowledgement by you/other beneficiaries that the attorney does not represent you or the other beneficiaries. Your brother, as Successor Trustee, has a fiduciary obligation to act in the best interests of the beneficiaries. If you have any questions about the fairness of the Distribution or any of the terms of this Distribution of Agreement, you should seek advise from an independant attorney. As a beneficiary, you also have the right to request an accounting of trust from the Successor Trustee.