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John Elder
John Elder, Estate & Elder Law
Category: Estate Law
Satisfied Customers: 4631
Experience:  Over 14 years experience in Medicaid, Estates, Trust.
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My brother is the trustee of my parents will. There is some

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My brother is the trustee of my parents will. There is some money put up in silver & gold bullion. This is the last part of the will. This is in Illinois. My mother died Jan 2012. My brother refuses to call or e-mail to tell me why he cannot finish out the will. I live in Oklahoma, a sister in Florida & 2 nieces in Calif(In the will) We don't have the money to hire a lawyer in Illinois. Does Illinois law cover "abuse of trust"? Can you help?
Submitted: 1 year ago.
Category: Estate Law
Expert:  John Elder replied 1 year ago.
Welcome! Thank you for your question. I need to get a bit of clarification from you.

You reference two different types of estates: A Trust Estate and a Probate (or Will Estate).

Is your brother Trustee (of a Trust Estate) or is your brother Executor under a Will?

If he is Trustee, was the silver and gold titled in the name of the Trust prior to your parents' death?
Customer: replied 1 year ago.

He is trustee. I am not sure if my father and mother were alive when the bullion was bought. I think that my mother was alive. I have sent an e-mail to my sister in Florida

Customer: replied 1 year ago.


My sister said that were alive

Customer: replied 1 year ago.

Trust estate

Expert:  John Elder replied 1 year ago.
Trustee is different that an Executor. An executor's actions are fully and continually reviewed by the probate court. A Trustee acts autonomously and does not have to report to the court or anyone. There are laws that give a court authority to review a trustee's actions but only if a beneficiary of the trust can show that the trustee has breached his or her fiduciary duty.

Here is a link to the FL statute with the duties and powers of a Trustee: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0736/0736PartVIIIContentsIndex.html&StatuteYear=2012&Title=-%3E2012-%3EChapter%20736-%3EPart%20VIII

This includes the duty to administer the trust in the interest of the beneficiaries. It also includes a duty to inform and account for a trustee. Here is the statute with the remedies if trustee is not meeting his duties http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0736/Sections/0736.1001.html

To have the trustee removed you would need to file an action in Florida court stating that the Trustee has breach his duty to administer the trust in beneficiaries' best interest and request that the court exercise the remedy of removal of the trustee.

I cannot provide you with legal advise. I have provided you with information about the law related to your question. My answer, and any information that you find online, should not take the place of having a consultation with a lawyer in your area to advise you regarding your specific issues.

Please show your appreciation for my candid, accurate information by clicking VERY INFORMATIVE, OR the OR and positive feedback. You should only rate me if you are satisfied with the information I provided you. If you cannot rate me GREAT please do not rate. Give me a chance to make it right by clicking REPLY TO EXPERT.

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Thank you,

John

Customer: replied 1 year ago.


The trust is in Illinois. Can you give me a link to Illinois law

Expert:  John Elder replied 1 year ago.
Sorry. Thought you said Florida. Give me a second.
Expert:  John Elder replied 1 year ago.
The Illinois statue is a bit more difficult to understand. Unlike Florida, Illinois has not adopted the Uniform Trust Code yet. Here is the Illinois statute dealing with a Trustee's obligations. Sections 11 and 16.4 are specifically the obligations of the trustee to act in the best interest of the beneficiaries. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2117&ChapterID=61

A beneficiary will still need to file an action in the court allege the breach of duty and request the court to remove the trustee.



Customer: replied 1 year ago.

What have you tried so far?: Talking to the trust lawyer & the CPA that is suppose to pay all last bills and has finished the 2012 taxes for the estate. They keep giving us the run around and not telling the truth.


 


This part of an earlier question I was hoping to get an answer to. Are they in anyway legally culpable to my family?

Expert:  John Elder replied 1 year ago.
Are you asking of the CPA is culpable?

Is the CPA advising the Trustee on the administration of the trust? On making distributions, etc.?
Customer: replied 1 year ago.

He is making distributions. The CPA , the trust lawyer nor my brother has made any voluntary attempt at providing up-to-date information. Every piece of information, which has been very little, has had to be obtained by one of us at great effort. They have never volunteered any information regarding the trust. We are in the dark and don't know how to proceed.

Expert:  John Elder replied 1 year ago.
Technically, since your brother is the trustee it is his duty, not the CPA or the attorney to communicate with you. The CPA and attorney are generally not obligated to communicate with anyone other than your brother. They work for your brother, not you, the trust or any other beneficiary.
Customer: replied 1 year ago.


I have never received any communication from brother, so we are in the dark.

Expert:  John Elder replied 1 year ago.
Then your remedy is to file suit in civil court of Illinois against your brother alleging breach of trust for failure to act in the best interest of the beneficiaries of the trust. The court can remove your brother as trustee and appoint a new trustee of the trust.
Customer: replied 1 year ago.

How do I do from Oklahoma?

Expert:  John Elder replied 1 year ago.
James,

Unfortunately, if you do file suit on your own then you need to write a complaint and take it to file it in Illinois. This is sort of like performing a surgical procedure on yourself. (Could be done but it will be messy). Practically, to file suit and have a chance at winning you need to hire an estate litigation attorney in Illinois to prepare proper allegations in a complaint, file and litigate it for you in the Illinois court.

Here are attorneys that focus on estate litigation in Illinois. I would suggest picking one close to the county where the trust is located and with a higher peer rating. http://www.lawyers.com/estate-litigation/all-cities/illinois/law-firms/?ns=y&st=q&form=LHOM&tier=-1

John
P.S. Please do not forget to rate me when we are done.
Customer: replied 1 year ago.

Thank you. The last amount of property is a couple oz of gold and 2000 oz of silver. 500 going to each beneficiary (some split) At todays rate
about $45,500. Do you fell like we can come out ahead.


 

Expert:  John Elder replied 1 year ago.
It is very hard to tell. Litigation on each side can cost $5,000 - $10,000 at least. He can use trust assets to defend the suit at first. If you win, you can use trust assets to pay your attorney. I would say it is likely to use at least 1/2 of trust assets in a suit.

With that said, it is possible (not probable) that a court will require your brother to pay all costs out of his share of the trust assets.
John Elder, Estate & Elder Law
Category: Estate Law
Satisfied Customers: 4631
Experience: Over 14 years experience in Medicaid, Estates, Trust.
John Elder and 5 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Thanks. Seems like damn if we do and damn if we don't

Expert:  John Elder replied 1 year ago.
Unfortunately yes based on the assets here. You may try and bluff your brother with a threat of a suit.

John

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