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LegalGems
LegalGems, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 3582
Experience:  Research Attorney; Private Practice; Attorney Mentor; Mediator
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I spoke with you some time ago about my brothers mishandling

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I spoke with you some time ago about my brothers mishandling of my father's estate. I have an follow-up question
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  LegalGems replied 1 year ago.

Customer:

Hi!Customerhere. My goal: To Do My Best To Assist You. Please remember, I can only provide general information,as this is a public forum.

Customer:

Thank you for requesting me. A few moments; I want to review our prior correspondence.

Customer:

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.

Customer :

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.

Customer:

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.

Customer :

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?

Customer:

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.

Customer :

Thank you for your explanation. I sincerely XXXXX XXXXX help.

LegalGems, Lawyer
Satisfied Customers: 3582
Experience: Research Attorney; Private Practice; Attorney Mentor; Mediator
LegalGems and 7 other Consumer Protection Law Specialists are ready to help you
Expert:  LegalGems replied 1 year ago.
I hope that you were able to resolve your estate law issue. I know how upsetting these situations can be; unfortunately they are all to common.

Please feel free to request me in the future by putting TO LEGAL GEMS in front of the question.

Also, you will be receiving a survey from the site - if you would kindly complete it that is appreciated, as it affects our customer satisfaction metrics. Thank you, XXXXX XXXXX Care!
Customer: replied 1 year ago.

I need more information. I have some additional issues since we last talked.

Expert:  LegalGems replied 1 year ago.
Hello again. Thank you for contacting me again. You can request me by putting To Legal Gems in front of the question, and as soon as I see it, I will respond. Thank you!
Customer: replied 1 year ago.

This is what is going on now. The attorney I had (note I said had Frown ) 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?


 


 

Expert:  LegalGems replied 1 year ago.

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.

Customer: replied 1 year ago.

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?

Expert:  LegalGems replied 1 year ago.
Generally, an accounting is sufficient if it is an excel spreadsheet. However, if there is any indication of any wrongdoing/suspicion, it is completeley acceptable to request substantiate (ie copies of receipts). The only problem with this is that the trustee can hire a third party to put this in order, and bill the estate; so it is generally only requested when foul play is requested. But if you have any concerns, it is generally wise to request substantiation. If it ends up in court, the trustee will have to provide this information, as the court will not rely on an excel spreadsheet or other general summation of the accounting.
Customer: replied 1 year ago.

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?

Expert:  LegalGems replied 1 year ago.

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.

Customer: replied 1 year ago.

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?

Expert:  LegalGems replied 1 year ago.
Actually, the fact that there were 5 requests for a proper accounting would be the basis for a removal. You can file the petition now, but it would be best if you asked for documented proof to back up the accounting, giving him the chance to do this without court intervention. Since he knows you are serious, presumably he would comply with your request. If not, you would need to file with the court.
Customer: replied 1 year ago.

Hi Legalgems,


 


I apologize for just now getting back to you. But I sincerely thank you 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?


 

Expert:  LegalGems replied 1 year ago.
Hello again! Glad I am still online; I almost signed off so perfect timing!

If he had knowledge that the second will existed, then he acted in bad faith, and the monies should be returned to the estate and distributed according to the provisions in the second will. Even if he did not have knowledge of the will, the court would require that the money be returned so the valid will can be carried out. However, this would provide yet another example of breach of fiduciary duty and should be included in the evidence when this goes before a judge. (Or your attorney can make a written request to him to voluntarily return the money to avoid legal proceedings)
(presumably he knew since you were awaiting the court hearing re: the second will).
I would have the new attorney hire a forensic accountant to go over the estate's assets, and to compare this with the prior reports you have received, so that any discrepancy can be duly noted. Forensic accountants are well versed in tracing money, and noticing red flags based on various accounting principles. You could do an asset search also, but I would primarily urge the retention of a forensic accountant. Most estate attorneys have relationships with a handful of accountants, so the new attorney should be able to refer you. I certainly hope the new attorney is more proactive than the prior attorney.
Customer: replied 1 year ago.

Thank you sooooo ! much. That is an excellent idea.

Expert:  LegalGems replied 1 year ago.
Very welcome - glad to have helped! Hopefully this matter will resolve sooner than later - I'm sure it is getting emotionally exhausting. Good luck with all this.
Customer: replied 9 months ago.

Hello Legalgems,


 


I need your assistance once more. I fired the attorney I had, and wrote my own petitions against my two brothers, one who was POA over my Dad's estate prior to his death; and the other who was both POA and is Trustee over my Dad's estate.


 


Well, I wrote a very thorough petition - so much so that the case was fast tracked. I got a call from the Circuit Court on a Tuesday (Oct. 29), was faxed the Show Cause Order on a Wednesday (Oct.30), was told I had to make sure all interested parties were served by Friday (Nov.1), and we had to go to court on the following Wednesday (Nov. 6th).


 


Well, when we went to court, the Judge ruled in my brother's favor. My sister and I believe that he was bribed by my sister-in-law, who is very well known both locally and nationally, She has a syndicated column in the Washington Post. We believe this because the judge did not take into consideration anything that was in the petition. In his decision, not only did he rule in my brother's favor, but he also said I had to pay court cost.


 


However, since that time, noone has gotten the Judge's ruling via mail, nor have I gotten billed for court costs. So, I went online, to check the status of the case, and it said that the decision was entered on the 8th of November, and copies were mailed. But it also shows a status of Cancelled/Vacated on November 13th.


 


I have done some preliminary research, and asked the social worker at my daughter's school, who is also a practicing attorney. She asked if it was a Fast Track case. Since it was she said that, the decision was vacated and that we should look for another court date.


 


Can you tell me what you think of all this. I know this is a long question.

Expert:  LegalGems replied 9 months ago.
Hello again!

Would you mind opening a new thread, and you can put TO Legal Gems in front of it?

I'm technically violating site rules, as it is supposed to be one question per thread.

Thanks!!
Customer: replied 9 months ago.

Okay, no problem! Sorry about that.

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