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LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 7456
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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My mother passed away in mid 2010 leaving both a will and a

Customer Question

My mother passed away in mid 2010 leaving both a will and a trust naming both my brother and I co executors to share everything she had equaly. I greaved her passing and had placed my trust in my brother to help get our trust divided. My brother had taken many years of law school and after my father passed in 2001he helped my mother by filung her taxs and make investments with over one half million dollars he had earned and invested and passed to mom. I drove a truck for 40yrs and knew little about inheritance trusts ect. My brother fell ill in 2012 and his doctor told him he should place me as his power of attorney so i could pay his medical bills ect as she feared he may pass on. I did my job best i could and fortunately he recovered in 2013. I felt it odd as soon as he began to feel better he just jerked me off his accounts without warning or a thankyou. I have been recently been going through mounds of paperwork abd old bank statenents trying to thin out all these papers cluttering my files. And have noticed. That my brother had at least two hundred thousand dollars more than i ever had and he had absolutely no other means of income other than my mothers trust to get that kind of assets. I begin looking closer and have noticed so many depisits to his accounts and funny little games he has played. I have asked him nicely several times about cecertain cases were. I had questions and he has either clammed up and didnt speak to me or one time screamed. At me but i have caught him in several bold face lies. My wife and i are simple trusting people and not til lately noticed and have bern adding up the huge amount of spending he has been doing. Since the end 2010. I wish i had payed more attention to his actions but i was truly grieving the loss of my mom and trusted my brother with all my heart. Before my father passed he tokd me that he was proud of me and i was a great driver but he felt because of my brothers education i should let him do the work paying taxs and cashing annuitys iras ect. He fearef it may be overwhelming for me . we are co trusties 50-50 but im positive he has cheated me especially. Due to the large amount of money he has even today after his spending so much. Please. What can be done to fix what he has done to me. Thank you.
Submitted: 5 months ago.
Category: Estate Law
Expert:  LegalGems replied 5 months ago.

Is the trust still ongoing, or has all assets been distributed?

When was the last distribution?

Customer: replied 5 months ago.
We are still looking into some checks my mother had writen for example we recently found a check stub showing she had sent fifteen thousand dollars to a company namef IFMC and we have no idea what for. She also had a pour over provision. In the trust and when her brother died leaving het some assets we are still waiting to get that money didtributed to us through that provision.
Customer: replied 5 months ago.
My brother. Has been quick to wanting to close the trust but ad i mentioned we. Still. Have ongoing issues that take the tools within the trust to get handled even though we haven't used the bank account since 2011 we still use the tools in thr trust to identity ourselves as beneficiaries of the trust and have legal rights to moneys that we have still. Been finding fot instance we have filled for some assets.that thr state of California unclamed money has been holding and wr should be recieving soon
Expert:  LegalGems replied 5 months ago.

Thank you;

So a trustee has a fiduciary duty to the estate - A fiduciary duty means that the person in the fiduciary capacity owes a duty to the other person- and that the fiduciary must act in good faith, with the best intentions, to preserve any property that is at issue. Failure to act in this manner (essentially, a trust/guardian) is considered a "breach" and can result in:
1. removal of the fiduciary
2. sanctions (ie fines, award of attorney fees, etc)
3. damages (economic liability for the damages suffered by the party to whom the duty was owed)

If the fiduciary fails to act according to the terms of the trust or the pour over will, or otherwise unduly benefits from their position as trustee, that exposes that individual to liability. Basically the court will want to see the money distributed according to the terms of the trust.

The statute of limitations for this breach is 2 years (from the date the breach was or should have been discovered) - this is pursuant to statute Section 12-542.

The fiduciary also has a duty to provide an accounting to the beneficiaries (usually annually) and to keep the beneficiaries reasonably informed regarding the trust.

Given the ongoing issue one has experienced and the inconsistencies one has encountered, an attorney should review the transactions to determine the existence of the breach, and to file the necessary breach of fiduciary duty papers with the probate court before the statute expires.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  LegalGems replied 5 months ago.

Checking in on the above;

Thank you for using Just Answer.

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