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Thank you for requesting me. A few moments; I want to review our prior correspondence.
Yes; it is exactly this type of issue which results in removal as trustee/executor. Willful failure to comply with a court order to provide an accounting indicates that the trustee is either unable or unwilling to honor the duties required of a trustee, and it also shows blatant disregard of the court's authority. Your attorney should be able to prepare the paperwork for you, and the trustee may even be ordered to reimburse attorney fees and costs, since they were incurred due to the trustee's malfeasance/negligence. I am sorry this has not yet resolved. Generally, when one refused to provide an accounting, it is a red flag that perhaps the estate was not properly handled. In such a case, the trustee would generally be ordered to recompensate the estate for any losses suffered.
Thank you so much for you advice. This is exactly what I thought. And this is precisely the road I am going to take. I am also glad to find out that he can be forced to recompensate me for legal fees.
You are welcome. You will have your attorney handle this, as this is one of the more complicated processes in probate law? Also, it is within the judge's discretion as for attorney fees - it is not a guarantee. The more the abuse is apparent, the more likely the courts are to award such fees however.
Sorry for the delay in responding. One further inquiry. When you said that this is one of the more complicated processes in probate, what are some things that would complicate it?
I'm sorry - I didn't want to unnecessarily worry you! It's just that with probate, generally things just get "pushed through", so to speak. So while this isn't as complicated/litigious as a will contest or allegations of undue influence (difficult to prove after the person has passed), it still does have an aura of contention about it, so to speak. Normally, a trustee/executor is bound by the obligations of fiduciary duties; basically, a failure to provide an accounting is an allegation (accusation) that the trustee/executor is not looking out for the best interests of the estate. This means the moving party will need to introduce evidence to this effect ( a failure to provide an accounting, especially with a court order to do so, does help substantially, and is generally less contentious than, say, an accusation of self dealing or misappropriation) thus requiring the executor/trustee to put forth evidence s/he has as to a valid (rare) reason why they failed to comply with this requirement. It puts the parties at odds with one another, whereas typically they try to work together. However, sometimes this isn't possible by virtue of the trustee/executor's actions (i.e. failure to provide an accounting). It just raises probate a notch above a standard probate proceeding, as normally (and ideally) the process is not contentious.
Thank you for your explanation. I sincerely XXXXX XXXXX help.
I need more information. I have some additional issues since we last talked.
This is what is going on now. The attorney I had (note I said had ) was very bad in the communications area. He works for a very noteworthy firm here in Baltimore. And I let him know I understood that. However, I emailed, called, and texted him numerous times over a period of 6 weeks after the court deadline. No response.. So finally I sent him a very firm but gentle email asking him if he had sufficient time to attend to my legal matters. I told him, if he did not, to please refer me to another attorney. Then I got a response. He apologized profusely. It was only then, six weeks after the deadline by which my brother was to have filed his accounting, per the court order, that he acted. What I wanted him to do was to file the petition immediately. However, he sent my brother's attorney an email giving him an additional week to submit an accounting. Otherwise, he would then file the petition to have him removed and seek sanctions. Well my brother did not respond to that either, by the deadlilne. However, a few days later, I guess at further prompting by my attorney, he submitted three Excel worksheets, without any supporting documentation. Additionally, they were inaccurate.
Next I told my attorney to file the petition. I supplied him with all the documentation to file it, and now three weeks have gone by. And again I could not get in touch with him. So, by this time, I am getting angry. So last week I sent him an email, because he was not responding to my calls or texts. I stated simply that if he could not have the petition filed by last Friday, to please refund the most recent deposit I had made, and that I would find another attorney. Well, I guess he was insulted by this, so he sent me an email, stating that upon further review, it was his conclusion that I had insufficient evidence to ask to have my brother removed.
Now my question is, if he thought that I did not have enough to move forward with the petition, why did he threaten the other attorney, and why did he take 3 weeks to tell me this?
Given the facts I have shared with you previously, do you still believe that I should move forward with filing the petition? Can you site the Maryland law/statute that would give grounds for his removal?
Hello again. Here is the statute which states that the trustee must provide an accounting. http://law.justia.com/codes/maryland/2010/estates-and-trusts/title-14/subtitle-4/14-405/
Failure to comply with statutory obligations is a basis for removal based on case law.I would strongly urge you to proceed with this, as generally a refusal to provide an accounting is a red flag.I would also be concerned about your attorney's apparent lack of concern. You may want to get a refund of any unused retainer, and meet with a more ambitious attorney. I am sorry you are having difficulties with this. You may want to call your local area on aging to see if they provide referrals, as they generally have good working relationships with estate attorneys of a high caliber.
One last question. What is the accounting comprised of? Wha is the trustee required to provide under the law? Or in other words, is a mere Excel spreadsheet with figures good enough? Or does the trustee have to supply supporting documentation such as bank statements receipts, tax return, and/or any other official documents that support figures listed in his accounting?
I have bank statements that show that 3 BOA CDs totalling over $45,000 were cashed and not redeposited into any of my father's accouints, prior to the trust being set up.
In my brother's accounting he finally submitted on July 31, he indicates that the CDs were cashed, consolidated and ,moved into another existing account, after the trust was set up on - on Sept 27 (which by the way, would have shown up on the statement.) I believe he did this because he probably put the money in his BOA account. Now, because he cannot justify where it went, on his statement, he shows the CDs being liquidated after the trust was set up, so he show that it went into the trust account But it didn't.
Should I include this information in the petition?
I am sorry to hear of this, as any inconsistencies will require further exploration. For example, you can (and this is the normal first option, before escalating the matter) have an attorney send a letter requesting clarification as to the discrepancy. Then, if you do not receive a satisfactory response, you will need to pursue legal action, i.e. breach of fiduciary duty, request for accounting, etc; if the court finds there was in fact a breach, they will order the trustee to replenish the money to the estate - to "make the estate whole" so to speak. Hopefully, an informal demand will suffice, as estate litigation, in addition to being expensive, is emotionally taxing.
But to answer your question, any evidence that shows breach of fiduciary duties should be referenced in the petition.
So now even though it has taken just about a year, having sent him 5 requests, one via certified mail, plus a court order, which he defied - that because he has finally submitted something in the last month, a judge would probably not rule to have him removed, without further evidence?
Also, if I have another attorney send a request asking him to explain and he is unable to, can I then file the petition to have him removed?
In other word, it seems that I cannot pursue this route, huh?
I apologize for just now getting back to you. But I sincerely XXXXX XXX for all your advise. It is extremely helpful.
I thought about what you said, and I will send my brother a letter asking for an explanation. I think this is a good next step.
After our last response conversation, I must admit, I was feeling very frustrated. But you forced me to go back and look at all the documentation again more thoroughly. Interestingly, I found multiple and huge discrepancies. The documents he submitted appears to have been deliberately manipulated to make it reconcile with others. But the dates and figures contradict those in Bank statements.
Also, I took look at the Trust document again, and the language in it specifically states that the Trustee will make available to beneficiaries all 'records and documents', and in a reasonable time. He has done neither. The language does not use the word 'accounting', but 'Trust records and documents'.
So, legally speaking, he has not performed his fiduciary duties.
Again, thank you!
Two more questions, and I am done. I promise.
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Both, Kevin and Vernon submitted wills to probate. Vernon submitted his first and was therefore appointed personal representative. While we were waiting to go to court to have a judge determine the valid will, Vernon went to Bank of America, closed the accounts and withdrew all remaining monies, amounting to over $8,000, knowing he had the older will, and would be removed as Personal Representative, which ultimately happened.
Question: Can he legally do that, or is there some provision in the law, that puts a hold on the actions of persons seeking to be PR until the valid will is identified.
Can I take him to court, to have him reimburse the monies he withdrew?
Secondly, should I have the new attorney to an asset search?
Thank you sooooo ! much. That is an excellent idea.
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