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Ask Barrister Your Own Question
Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33704
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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Mom named oldest brother of 4 as trustee. Mom died, Trustee

Customer Question

Mom named oldest brother of 4 as trustee. Mom died, Trustee has lived in the family home rent free ever since. Says he is in control. The trust stats that everything gets divided 4 ways. Want to charge trustee rent for the 4 years he lived at the property rent free after Mom passed. What is the statute, case law or common law that says so. Trustee has counsel and counsel said show me. Seems like it would be obvious, but I figure I would play along.
JA: Because laws vary from place to place, can you tell me what state the property is in?
Customer: CA
JA: What documents or supporting evidence do you have?
Customer: The trust states divide 4 ways. Trustee did nothing, its been 4 years. he lives in the property and has since mom passed, rent free. He lives for free
JA: Anything else you want the lawyer to know before I connect you?
Customer: not really
Submitted: 2 months ago.
Category: Estate Law
Expert:  Barrister replied 2 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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This is just something that has been established over time through common law and cases in court.. The trustee only has the authority that is given to him in the trust documents. So if it doesn't give him the legal right to use trust assets for his personal use, then he can't do so. And very few trusts give a trustee that right.

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But you don't have to prove he doesn't have the right...that is disproving a negative.. He has to prove that he does have the right by pointing to something in the trust that gives him that right.

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So your recourse here is to file a suit against him in probate court under a breach of fiduciary duty claim since he has a legal and fiduciary duty to the beneficiaries of the trust to administer the trust in a prompt and timely manner. If the trust says that the assets have to be disbursed upon mother's death, then 4 years is a ridiculous amount of time for a beneficiary to have to wait. The trustee is simply mooching off the trust assets and is not going to do anything until a judge orders him to do so.

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So in the lawsuit against trustee, you would be able to force him to appear in front of the judge and explain why he has been dragging his heels and violating his legal duty to settle the trust. You can also ask that the judge order him to pay the reasonable rental value of the property to the trust for his illegally usurping it for his own personal benefit. And I would also ask that he be held liable for your attorney costs in bringing the action based on his bad faith and fraud in not settling the trust strictly because he wanted to use trust assets as long as he could at no cost to himself.

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Judges don't tend to like people who act like this and can ding them pretty harshly with a personal judgment against them and even remove them from being trustee and appoint one of the other beneficiaries..

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thanks.

Barrister

Customer: replied 2 months ago.
That is what I thought. Got any direct citations? I know judges seem to like those
Expert:  Barrister replied 2 months ago.

No, and court isn't like you see on TV where attorneys run in waving around caselaw in their hands in front of the judge.

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Judges know what the law is in a situation like this and tend to get a little ruffled if a non attorney is trying to educate them on the law. So if you hire an attorney to sue him, the attorney and the judge will both know that what he is doing is not allowed unless the trust allows it. If you go this alone, which I always feel is a bad idea...kind of like swimming with the sharks if you are going up against an attorney in his tank.. then the judge will still know the law and that this is not allowed.

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The problem in representing yourself is that if you are not experienced in filing your own lawsuits, motions, briefs, etc, you can easily turn a winning case into a losing one through technical mistakes because the judges expect everyone in front of them to practice just like an attorney.

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So I highly suggest not going this alone as it is kind of like pulling teeth....you can pull your own teeth, but it always goes better with less chance of something going very wrong if you go to a dentist..

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thanks

Barrister

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