Legal Question in Wills and Trusts in California
Our parents had an A/B trust in California. When our dad died, our mom became trustee. However mom was in poor health and confined to bed, so my older brother was granted Power of Attorney over her bank account so he could write checks to pay all her bills and expenses. He did this until mom passed away 5 years later in 2009.
Snooping around on the family computer (which my brother had used to do mom�s bookkeeping) I later found tax documents showing large checks written to �cash� every month with no explanation given. Over 5 years the checks to �cash� total over $100,000. When asked, my brother gave me BS excuses as to where that money went.
I understand that my brother has no legal obligation to explain to me where that money went, his obligation was to our mother. But I�m certain he stole money from our mother�s bank account. Is there any (legal) way to force my brother to account for all that missing money?
Thank you.
2 Answers from Attorneys
Since both the trustors of the Trust have died, in the usual A/B Trust the assets would then be distributed. Your brother's POA ends upon the death of your mother. If the Trust does not file to have the Trust enforced or does not properly proceed forward with it, then any beneficiary can file with the probate court to have the trust enforced. The trustee must give a detailed accounting of the assets after your mother's death and can be also required to explain what happened to certain assets before her death. Your brother may be guilty of elder abuse, theft, etc. you probably need at least a letter from an attorney demanding an accounting and probably to petition the court to remove him as trustee is he is the trustee.
As Mr. Shers has stated, any authority that your brother had under the POA ended with your mother�s death. If your brother misappropriated your mother�s funds while he was acting under this POA, then you, as your mother�s successor-in-interest, may be able to bring an action against him for financial elder abuse and conversion (theft). He certainly has some explaining to do regarding the $100,000 plus in checks made payable to �cash�.
Your parent�s A/B trust should have been distributed to the beneficiaries after your mother�s death. Ordinarily, depending on the terms of the trust, property is distributed either directly to the beneficiaries or to another trust for any beneficiary not entitled to receive property outright.
Is your brother also the successor trustee of your parent�s trust? Assuming that he is, your brother has the fiduciary responsibility to properly administer the trust. The trustee has a duty to keep beneficiaries reasonably informed of the trust administration (Probate Code Section 16060) and to account to them, as well. Under Probate Code Section 16062(a), the trustee must provide his account to the beneficiaries at least once each year until the trust is terminated. The trustee is also required to account when the trust terminates or when there has been a change of trustee. In your case, it sounds as though the trustee has not prepared any accountings, let alone one for 2009, 2010, or 2011.
The trustee is also required to serve all beneficiaries and heirs with a Notification by Trustee under Probate Code Section 16061.7. This notice must provide the name, address, and telephone number of the successor trustee, the address where the trust is to be administered, and must apprise all beneficiaries or possible beneficiaries of their right to a copy of the terms of the trust under Probate Code Section 10660.5. This notice must also advise you and the other beneficiaries of the time limits for any trust contests. Since your brother does not appear to be carrying out his duties as the trustee, you might consider a Probate Petition to have him removed as trustee.
You should consult with an estate planning or elder law attorney concerning the issues with your mother�s trust and your brother�s actions as your mother�s former agent/attorney-in-fact under the POA .
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