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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 37651
Experience:  Texas lawyer for 30 years in Estate law
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My father had a trust, he never wanted 'us' to go thru proba

Customer Question

My father had a trust, he never wanted 'us' to go thru probate. My father's oldest & dearest friend was named by him as executor. For a myriad of reasons (mainly grief, age (80 & still teaching university), & distance) he became overwhelmed & legally made father's wife of 3 years co-executor. She had not by my father been made a trustee,although was a beneficiary. They had an odd marriage.They maintained separate homes 70 miles apart & my father spent 6 month a year in France, on his own. He several times said he'd married in exchange for end of life home care. She has taken over but what troubles us is it seems she has hired a lawyer to avoid paying somethings we know our father owed.She should not need a lawyer.Does his estate have to pay his fees or can we ask her to?She's trying to avoid paying a $30,000.00 judgement that was awarded in 2011, my father died December 2013 - there is definitely enough $ to pay it and move on, but nothing is done but the lawyer's fee increases.
Submitted: 1 year ago.
Category: Estate Law
Customer: replied 1 year ago.
It's been 1/2 hour - what gives - this is ridiculous!
Customer: replied 1 year ago.
If it's not answered in the next 5 minutes, don't bother & don't send it to my email & don't charge me!
Expert:  RayAnswers replied 1 year ago.
Hi and welcome to JA. I am Ray and will be the expert helping you tonight.
Thanks for your patience.Here your move would be to motion the
Superior Court to remove this person.She has committed material breaches by not paying claims/judgments and not communicating with you properly.
California law clearly allows for the court to remove her and allow for a new trustee in t his situation.You will need a local lawyer to file such a motion where the deceased resided.
California law on removal and related issues.
15642. (a) A trustee may be removed in accordance with the trust
instrument, by the court on its own motion, or on petition of a
settlor, cotrustee, or beneficiary under Section 17200.
(b) The grounds for removal of a trustee by the court include the
following:
(1) Where the trustee has committed a breach of the trust.
(2) Where the trustee is insolvent or otherwise unfit to
administer the trust.
(3) Where hostility or lack of cooperation among cotrustees
impairs the administration of the trust.
(4) Where the trustee fails or declines to act.
(5) Where the trustee's compensation is excessive under the
circumstances.
(6) Where the sole trustee is a person described in subdivision
(a) of Section 21350 or subdivision (a) of Section 21380, whether or
not the person is the transferee of a donative transfer by the
transferor, unless, based upon any evidence of the intent of the
settlor and all other facts and circumstances, which shall be made
known to the court, the court finds that it is consistent with the
settlor's intent that the trustee continue to serve and that this
intent was not the product of fraud or undue influence. Any waiver by
the settlor of this provision is against public policy and shall be
void. This paragraph shall not apply to instruments that became
irrevocable on or before January 1, 1994. This paragraph shall not
apply if any of the following conditions are met:
(A) The settlor is related by blood or marriage to, or is a
cohabitant with, any one or more of the trustees, the person who
drafted or transcribed the instrument, or the person who caused the
instrument to be transcribed.
(B) The instrument is reviewed by an independent attorney who (1)
counsels the settlor about the nature of his or her intended trustee
designation and (2) signs and delivers to the settlor and the
designated trustee a certificate in substantially the following form:
"CERTIFICATE OF INDEPENDENT REVIEW
I, ___________________ , have reviewed
(attorney's name)
______________________ and have counseled my
(name of instrument)
client,
__________________ , fully and privately on the
(name of client)
nature and
legal effect of the designation as trustee of
___________________
(name of trustee)
contained in that instrument. I am so
disassociated from the interest of the person
named as trustee as to be in a position to advise
my client impartially and confidentially as to
the consequences of the designation. On the basis
of this counsel, I conclude that the designation
of a person who would otherwise be subject to
removal under paragraph (6) of subdivision (b) of
Section 15642 of the Probate Code is clearly the
settlor's intent and thatintent is not the
product of fraud, menace, duress, or undue
influence.
____________________ ________________ "
(Name of Attorney) (Date)
This independent review and certification may occur either before
or after the instrument has been executed, and if it occurs after the
date of execution, the named trustee shall not be subject to removal
under this paragraph. Any attorney whose written engagement signed
by the client is expressly limited to the preparation of a
certificate under this subdivision, including the prior counseling,
shall not be considered to otherwise represent the client.
(C) After full disclosure of the relationships of the persons
involved, the instrument is approved pursuant to an order under
Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of
Division 4.
(7) If, as determined under Part 17 (commencing with Section 810)
of Division 2, the trustee is substantially unable to manage the
trust's financial resources or is otherwise substantially unable to
execute properly the duties of the office. When the trustee holds the
power to revoke the trust, substantial inability to manage the trust'
s financial resources or otherwise execute properly the duties of the
office may not be proved solely by isolated incidents of negligence
or improvidence.
(8) If the trustee is substantially unable to resist fraud or
undue influence. When the trustee holds the power to revoke the
trust, substantial inability to resist fraud or undue influence may
not be proved solely by isolated incidents of negligence or
improvidence.
(9) For other good cause.
(c) If, pursuant to paragraph (6) of subdivision (b), the court
finds that the designation of the trustee was not consistent with the
intent of the settlor or was the product of fraud or undue
influence, the person being removed as trustee shall bear all costs
of the proceeding, including reasonable attorney's fees.
(d) If the court finds that the petition for removal of the
trustee was filed in bad faith and that removal would be contrary to
the settlor's intent, the court may order that the person or persons
seeking the removal of the trustee bear all or any part of the costs
of the proceeding, including reasonable attorney's fees.
(e) If it appears to the court that trust property or the
interests of a beneficiary may suffer loss or injury pending a
decision on a petition for removal of a trustee and any appellate
review, the court may, on its own motion or on petition of a
cotrustee or beneficiary, compel the trustee whose removal is sought
to surrender trust property to a cotrustee or to a receiver or
temporary trustee. The court may also suspend the powers of the
trustee to the extent the court deems necessary.
(f) For purposes of this section, the term "related by blood or
marriage" shall include persons within the seventh degree.
15643. There is a vacancy in the office of trustee in any of the
following circumstances:
(a) The person named as trustee rejects the trust.
(b) The person named as trustee cannot be identified or does not
exist.
(c) The trustee resigns or is removed.
(d) The trustee dies.
(e) A conservator or guardian of the person or estate of an
individual trustee is appointed.
(f) The trustee is the subject of an order for relief in
bankruptcy.
(g) A trust company's charter is revoked or powers are suspended,
if the revocation or suspension is to be in effect for a period of 30
days or more.
(h) A receiver is appointed for a trust company if the appointment
is not vacated within a period of 30 days.
15644. When a vacancy has occurred in the office of trustee, the
former trustee who holds property of the trust shall deliver the
trust property to the successor trustee or a person appointed by the
court to receive the property and remains responsible for the trust
property until it is delivered. A trustee who has resigned or is
removed has the powers reasonably necessary under the circumstances
to preserve the trust property until it is delivered to the successor
trustee and to perform actions necessary to complete the resigning
or removed trustee's administration of the trust.
15645. If the trustee of a trust that is not revocable has refused
to transfer administration of the trust to a successor trust company
on request of the beneficiaries described in subdivision (c) of
Section 15640 and the court in subsequent proceedings under Section
17200 makes an order removing the existing trustee and appointing a
trust company as successor trustee, the court may, in its discretion,
award costs and reasonable attorney's fees incurred by the
petitioner in the proceeding to be paid by the trustee or from the
trust as ordered by the court.
Lawyer referral here , plug in your city..with ratings
http://www.avvo.com/trusts-lawyer/ca.html
I appreciate the chance to help you tonight.I appreciate your patience.Sorry you had to wait.Thanks again, if you have more just ask.
Expert:  RayAnswers replied 1 year ago.
More about removal, as you can see California is very progressive and they have extensive laws on removal.Many other states do not have such protection.
http://www.sandiegolawfirm.com/trust-administration-problems-how-to-handle-an-ineffective-trustee/
Thanks again for the chance to help.I wish you the best.
If you can leave a positive rating when we are done it is always much appreciated.

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