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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 37061
Experience:  Texas lawyer for 30 years in Estate law
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Ray Thank you assistance. My father passed with a trust. The

Customer Question

Hi Ray Thank you for your assistance.
My father passed with a trust. The trustee is a crook. We had a settlement agreement and I was to split the coins into two "piles" and he would choose one of them. My attorney who is not an estate attorney said when we agreed to the settlement agreement that we agreed to the amount of coins. I have since discovered that there were substancially more coins($450K) than on the original apprasial. I have to turn in the coin split list Friday of this week. What should I do?
I have the invoices from the companies to my father.
Submitted: 9 months ago.
Category: Estate Law
Expert:  RayAnswers replied 9 months ago.

Hi and welcome to JA. Ray here to help you today.

You will need your lawyer to involve the courts.You need a court ordered accounting and removal of the trustee.This is a breach of fiduciary duties to you and the trust to misrepresent the assets and the trustee should be removed here.

California has a Trust Code with these specific provisions that allow for removal and an accounting as well.Usually these things are even worse that you know, sounds like missing or misspent assets here for sure.

Reference

15642. (a) A trustee may be removed in accordance with the trustinstrument, by the court on its own motion, or on petition of asettlor, cotrustee, or beneficiary under Section 17200. (b) The grounds for removal of a trustee by the court include thefollowing: (1) Where the trustee has committed a breach of the trust. (2) Where the trustee is insolvent or otherwise unfit toadminister the trust. (3) Where hostility or lack of cooperation among cotrusteesimpairs the administration of the trust. (4) Where the trustee fails or declines to act. (5) Where the trustee's compensation is excessive under thecircumstances. (6) Where the sole trustee is a person described in subdivision(a) of Section 21350 or subdivision (a) of Section 21380, whether ornot the person is the transferee of a donative transfer by thetransferor, unless, based upon any evidence of the intent of thesettlor and all other facts and circumstances, which shall be madeknown to the court, the court finds that it is consistent with thesettlor's intent that the trustee continue to serve and that thisintent was not the product of fraud or undue influence. Any waiver bythe settlor of this provision is against public policy and shall bevoid. This paragraph shall not apply to instruments that becameirrevocable on or before January 1, 1994. This paragraph shall notapply if any of the following conditions are met: (A) The settlor is related by blood or marriage to, or is acohabitant with, any one or more of the trustees, the person whodrafted or transcribed the instrument, or the person who caused theinstrument 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 trusteedesignation and (2) signs and delivers to the settlor and thedesignated 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 beforeor after the instrument has been executed, and if it occurs after thedate of execution, the named trustee shall not be subject to removalunder this paragraph. Any attorney whose written engagement signedby the client is expressly limited to the preparation of acertificate 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 personsinvolved, the instrument is approved pursuant to an order underArticle 10 (commencing with Section 2580) of Chapter 6 of Part 4 ofDivision 4. (7) If, as determined under Part 17 (commencing with Section 810)of Division 2, the trustee is substantially unable to manage thetrust's financial resources or is otherwise substantially unable toexecute properly the duties of the office. When the trustee holds thepower to revoke the trust, substantial inability to manage the trust's financial resources or otherwise execute properly the duties of theoffice may not be proved solely by isolated incidents of negligenceor improvidence. (8) If the trustee is substantially unable to resist fraud orundue influence. When the trustee holds the power to revoke thetrust, substantial inability to resist fraud or undue influence maynot be proved solely by isolated incidents of negligence orimprovidence. (9) For other good cause. (c) If, pursuant to paragraph (6) of subdivision (b), the courtfinds that the designation of the trustee was not consistent with theintent of the settlor or was the product of fraud or undueinfluence, the person being removed as trustee shall bear all costsof the proceeding, including reasonable attorney's fees. (d) If the court finds that the petition for removal of thetrustee was filed in bad faith and that removal would be contrary tothe settlor's intent, the court may order that the person or personsseeking the removal of the trustee bear all or any part of the costsof the proceeding, including reasonable attorney's fees. (e) If it appears to the court that trust property or theinterests of a beneficiary may suffer loss or injury pending adecision on a petition for removal of a trustee and any appellatereview, the court may, on its own motion or on petition of acotrustee or beneficiary, compel the trustee whose removal is soughtto surrender trust property to a cotrustee or to a receiver ortemporary trustee. The court may also suspend the powers of thetrustee to the extent the court deems necessary. (f) For purposes of this section, the term "related by blood ormarriage" shall include persons within the seventh degree.15643. There is a vacancy in the office of trustee in any of thefollowing circumstances: (a) The person named as trustee rejects the trust. (b) The person named as trustee cannot be identified or does notexist. (c) The trustee resigns or is removed. (d) The trustee dies. (e) A conservator or guardian of the person or estate of anindividual trustee is appointed. (f) The trustee is the subject of an order for relief inbankruptcy. (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 30days or more. (h) A receiver is appointed for a trust company if the appointmentis not vacated within a period of 30 days.15644. When a vacancy has occurred in the office of trustee, theformer trustee who holds property of the trust shall deliver thetrust property to the successor trustee or a person appointed by thecourt to receive the property and remains responsible for the trustproperty until it is delivered. A trustee who has resigned or isremoved has the powers reasonably necessary under the circumstancesto preserve the trust property until it is delivered to the successortrustee and to perform actions necessary to complete the resigningor removed trustee's administration of the trust.15645. If the trustee of a trust that is not revocable has refusedto transfer administration of the trust to a successor trust companyon request of the beneficiaries described in subdivision (c) ofSection 15640 and the court in subsequent proceedings under Section17200 makes an order removing the existing trustee and appointing atrust company as successor trustee, the court may, in its discretion,award costs and reasonable attorney's fees incurred by thepetitioner in the proceeding to be paid by the trustee or from thetrust as ordered by the court.

You will need the lawyer if you want to seek accounting and removal of trustee based on his actions and deceit.He has breached his fiduciary duties to the trust and beneficiaries here no doubt.

Expert:  RayAnswers replied 9 months ago.

Stan I appreciate the chance to help, let me know if you have more follow up.

Customer: replied 9 months ago.
Thank you for you answer. I feel you are correct in your assesment. However, reality sets in here. My attorney is not an estate attorney and is up against 3 estate attorneys with decades of experience. Consequently, we didn't do well in the settement agreement. The trustee and his attorneys will fight this big time. Putting my attorney in court with these 3 is scary.
This I think could be a long and costly battle which I may not be able to endure or prevail in under the circumstances. To start all over with a new law firm would also be difficult and quite costly as this has been going on for 3 years.
Is there another way to address this situation without going into a major war and having to start over with a new law firm from scratch?
Expert:  RayAnswers replied 9 months ago.

So you just tell them you realize that there are unaccounted for coins and propose a new resolution here.You can ask for verification that the trustor paid for the coins and they are part of the trust settlement.He is claiming coins for himself here rather than part of trust.He isn't playing fair.You can always try to negotiate a better outcome.Court here is a last resort--you can threaten them with it doesn't mean you will go there.

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