Legal Question in Wills and Trusts in California
Trust Never Filed
The Story: BAD MAN obtains power of attorney from CHILDLESS WIDOW in 1993. In 1994 BAD MAN helps WIDOW set up living trus thus voiding previous will. Trust has special education bequest to 5 MINOR CHILDREN. BAD MAN is named Trustee of WIDOW's trust. WIDOW dies in 1998 thinking all is well with her trust and that her requests will be honored. BAD MAN is supposed to send annual accountings of the trust to beneficiaries -- he does not do this. One of the beneficiaries discovers in 2005 that although the WIDOW's trust was signed by the widow and notorized, it was never filed. BENEFICIARY suspects that BAD MAN had been stealing from the WIDOW from the time he obtained power of attorney in 1993. What course of action should be taken agains the BAD MAN?
5 Answers from Attorneys
Re: Trust Never Filed
There is no requirement that a trust be filed. Anyone who has standing (generally a beneficiary or heir) can demand an accounting. If the bad man committed fraud through use of the power of attorney, he can be liable for his actions. The new trust or trusts can also be challenged on the basis of lack of capacity and undue influence. My biggest concern with your case, however, is that fact that all of this happened so long ago. Nevertheless you should consult an attorney that specializes in probate litigation and see if you have a claim.
Re: Trust Never Filed
one of the beneficiaries (or legal guardian if not of age) should send a written request for a full accounting for the trust since inception. when there is no response, a petition should be filed with the probate court for an accounting and, if the trustee acted improperly, removal of the trustee and other actions.
SEE:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=17001-18000&file=17200-17211
Re: Trust Never Filed
The trust can be attacked and the trustee ordered to make an accounting and removed if he has breached his fidicuary duty. Call me directly at (619) 222-3504.
Re: Trust Never Filed
your characteraztion of the parties to your story are truly vivid and enticing but your problem is that this is not a fairy tale and you are not expertiese enough, given your literary stylization to help the widow, her heirs, beneficiaries and your self if you act alone --- go hire and attorney expertize in estate planning/ litigation and other related areas -- do it now , better yet do it yesterday and stop looking for free advice as it will problably cost you more in the long run -- I have been practicing law in the San Francisco Bay area for approximately 35 years and expert in the area in the category in which your question is placed. I feel I can help you in this matter and if you wish to consult with me please contact me at 925-945- 6000.
Re: Trust Never Filed
Demand an accounting. If one is not provided, the Cour can force one out of them. The Court can also remove the BAD MAN from his position as Trustee.
This is most easily done qwhen all the beneficiaries agree on the same course of action.
If you require assistance or additional information, please feel free to look through some of the laws provided on our site www.No-Probate.com or, feel free to contact me directly at 626-578-0708, extension 4.
Scott
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