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William B. Esq.
William B. Esq., Attorney
Category: Legal
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Experience:  Civil litigation attorney for individuals and businesses.
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I was recently booted off two irrevocable trusts as trustee

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I was recently booted off two irrevocable trusts as trustee by a court order issued by a probate judge who did 3 things--
1. totally ignored the trust
2. treated the whole trust like a guardianship instead of a trust.
3. appointed a temporary conservator as trustee when Bank of America was designated in the trust agreement to be the successor to me.
4. threw us off with no evidentiary hearing on the SUSPICION from reading a trust accounting we submitted that we were overpaying ourselves and self dealing.

The court action happened in California. Most of the trust assets are in Arizona and we are in appeal to bring jurisdiction back to Arizona.

I am in Arizona and am thinking about disobeying the court order. A large percentage of the assets in Arizona in the irrevocable trusts are precious metals and I can conceal them and refuse to ship them to California to the new trustee

Looking at the penalties for disobeying a court order it looks like the maximum penalty is $1,000 fine and 5 days in jail without taking me to a jury trial (which I would welcome). I am told that the defense against disobeying a court order is to prove it was not legal in which case you are off the hook.

If these clowns get their hands on the metals they will liquidate them in a bear market and take the losses into the California Kangaroo court and try to backcharge me for the losses.

As a final problem the conservator that the judge appointed to take over the trust has 70 conservatorships. 8 of those involve trusts and the judge has taken the original trustees off of 6 of the 8 to put this conservator on. Conservator's daddy owns a 12 acre ranch in Ojai (Ventura county).

Final tidbit of information is the judge also ordered a mediation to discuss how much to backcharge me when EVERYTHING I have done and invested in is specifically permitted by the trust. I have had the trust 2 years and average income on assets value has been 8.5%. We do not have money to continue to keep our existing counsel but we do have errors and ommissions insurance and are in the process of getting new representation.

The conservator filed a petition under section 2580 or 2850 of the California code to have us removed as trustees. Later in depositioning this chick we discovered that all her accusations were perjured. (She swore she had first hand knowledge that all the accusations were true, but under deposition admitted she was told the accusations by one party who is delusional (court certified--the old testator), and from one of the antagonistic contingent beneficiaries and her attorney.

I really want to disobey this court order to the extent that I can.
Submitted: 1 year ago.
Category: Legal
Expert:  William B. Esq. replied 1 year ago.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer, I would like to assist you today.

William B. Esq. :

As an initial matter, the penalties you describe for contempt of court are not the limit of your liability in the event you choose to violate this Court order. If you choose not to comply with the Order, you face civil penalties for any loss to the estate (remember, this does not necessarily mean that the estate loses money overall, but can only mean that the estate loses the ability to use the assets for a short period of time). You also face civil penalties for ongoing violations of the Court order which increase the Court's ability to impose civil confinement (jail time) or fines on you until you comply. Judicial fines are generally unrestricted, and can be very costly for an intentional disregard of a Court Order. (I mention these things as you noted you are unable to continue paying your current counsel, if costs such as reasonable attorney's fees are an issue, you would be ill advised to incur the unreasonable court sanctions associated with non-compliance with a Court Order).

William B. Esq. :

Most importantly, if you intentionally disregard the Court Order, you place your errors and omissions insurance coverage at risk. Insurance cannot cover intentional conduct, and carriers generally look for ways not to spend money. If you are already engaged in intentional bad conduct, that will provide at least the beginning of a basis for them to deny coverage (timing and other factors make this less of an issue, but I do not know how important this coverage is to you).

William B. Esq. :

If you want to get a stay on this matter while the decision is on appeal, you may do so in the California Court of Appeals, asking that the Appellate Court issue a stay pending the appeal. While these motions are not always granted, if you can show that the property in question will remain in safekeeping and the "status quo" will be be maintained by holding onto these metals pending the appeal, the Court may issue a stay during the appeal.

William B. Esq. :

I wish that I had information that was more favorable to you, but I want to give you as accurate a statement of the law as possible so that you can plan accordingly. While you may have been treated badly in this court proceeding, and the decision may have been made on an incorrect (or even blatantly wrong) basis, it is generally not advisable to disregard a court order in these circumstances. You may of course do so at your peril, but I would recommend getting personal counsel to assist you in this matter where you can get attorney/client privileged information, advice, and strategy to support a more complete and competent decision.

William B. Esq. :

I hope that my answer was of assistance to you. My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Please remember to rate my service once you have all the information you need. Thank you for your business!

Expert:  William B. Esq. replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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Customer: replied 1 year ago.

Bill.


 


Good answer but a couple of things you did not address and a couple of things I may have omitted--


 


I have not yet received an actual signed court order--only a verbal order in court so I am only sending the new trustee bills. Bank of America wants to get involved but not until I have a court order.


 


Second the codes I read say that if a judge's penalty exceeds a certain amount then I am entitled to a civil jury trial on my contempt case. With lower penalties I am entitled to a court appointed rep. I would love to get this thing into civil court.


 


Also says that two defenses against contempt are inability (as my family is currently in town and my new lawyer--from the insurance-- is not on board yet) plus I have visitors in town and am not able to comply and work on my final accounting--which is a priority because I need to get that out and into the hopper while I still have coverage.


 


The errors and omissions is important and I will not do anything blatant but I need to hold onto certain papers until I can vett and copy them and I also need to retain access to the bank account and brokerage accounts to complete the final accounting. I don't want to do anything to piss off my insurers but have not heard from an attorney there yet.


 


So maybe the solution is to proceed with the transfer at the rate I am able to and get her the bills first (which is what I have done) so those get paid. She will take over the brokerage accounts herself and the bank accounts at some point so I am not writing any checks or buying or selling any securities.


 


I had intended to hold onto the metals but--after talking to you and my attorney here in Az--think that might not be a good idea--too blatant. They are in safe deposit boxes in several institutions and the new trustee wants to send Morgan Stanley over to Arizona from California to pick them up. I told them that was ok (so far) but to have Morgan Stanley contact me directly. Reason is because the new trustee is a perjurer and I want the drivers to count and sign for the contents of each box and do it in my presence.

Expert:  William B. Esq. replied 1 year ago.
The Court order is not final until it is signed and served. The reason is that the Court's order may not be in its final form as the Court intends it to be when it issues the order from the bench. This date of service also acts as the start date from which you start counting the 60 days in which you may file a notice of appeal (file sooner rather than later if you intend to appeal).

Regarding the contempt issue. You might be placing too much emphasis on a contempt proceeding and not enough on the Court's ability to sanction you. Most judges simply sanction a party or an attorney that fails to properly follow Court orders. This will create a significant financial liability for you outside any right to counsel or jury trial.

None of the issues you cite are valid reasons for an "inability to comply". The only issue I can see which would be a valid reason for you not to comply with the Court's order for you to turn over the instruments and documents would be the need to complete the final accounting. If there is any other reasonable way (such as getting copies or the new trustee being required to send you copies of future documents for a reasonable or necessary time), that would satisfy the requirement and you would still need to turn over the documents. Family issues, need to retain counsel, and what may be deemed unreasonable delays in getting a final accounting done in and of itself generally are not a basis to delay. If you want to ask the court for relief you can, but you must do so in a motion for stay of judgment. (Given your experience in the Court you can gauge your potential for success, and rate the worth of such a motion, but it is the only valid way to get such an extension).

I believe your proposed course of action in accounting for all transfer of assets is sound, and that even involving a third party or referee of some sort (such as a bank employee or other reliable third party) would be a good way to ensure that your transfer is not tainted. There is no way to absolutely protect yourself in every instance, but creating a sound record of such a transfer is a good way to help bolster your final accounting.

(Please do let me know if I overlooked anything, or if you would like more discussion on any point, you have a detailed question and I want to ensure I answer it completely).
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2958
Experience: Civil litigation attorney for individuals and businesses.
William B. Esq. and 17 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

A couple of more questions.


The trust I am trustee on was originally located in California. When I became successor trustee two years ago I moved to Arizona and moved all the trust bank accounts and paperwork here as well. I also purchased property for the trust in Az. and bought metals--as I mentioned--and stored them in vaults here in Az--all the property of the trust as well.


 


I filed for court approval of our accounting here in Arizona a little more than a year ago and one of the beneficiaries filed a cross claim to have the jurisdiction for the trust returned to California. We lost in that decision so the trust was returned to California but I appealed. The appeal went in a year ago and most recently all the final briefs went in and the appeals court denied a request from our opposition to make verbal arguments (that was the last activity on May 15). We thin we will win because the original Arizona judge was requiring a useless act--I had the power of attorney for my mother and she was incapacitated so the judge basically ruled that I could not move the trust because I did not notify myself. The court in California proceeded anyway while the appeal was in and eventually took us off the trust. Does this make sense? Since they (Cal court) issued a court order to return all the trust assets, do we have grounds to hold on to some of them anyway pending the outcome of the appeal? On what basis did the Cal court move ahead? Do you think that the California court was in the right?


 


Can the Cal courts come over to Az to get me if I keep some trust assets pending the outcome of the appeal?


 


Second question--during the course of the hearings in California the judge-


+turned our trust into a guardianship.


+completely rewrote the trust and ignored half it's provisions. For example we were entitled to a conference and an arbitration via trust terms before a beneficiary is allowed to bring a case against us and we got neither. Also he appointed a conservator buddy of his to succeed us as trustee when the trust doc designates B of A as our successor.


+preliminary court order is worded so as to prevent us from putting together an accounting in that all records and funds have to be turned over immediately and there is no provision for the trust to pay for the accounting. Also the court order--when it even comes--will be worded to be retroactive to the time of the hearing which was a month ago. The trust on the other hand says that I can set up a reserve from the trust to do an accounting and pay the expenses of the transition.


 


Anyway. My question is--Can a judge totally ignore a trust and make up all his own rules? What parts of a trust does the judge have to respect?


 


Can't help but think if I came into this court with the Kennedy or Rockefeller trust, these clowns would not be trying to rewrite it. Why is it they think they can get away with rewriting mine??--because they think I am poor and stoopid? Can the judge get away with rewriting the trust??


 

Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

It is possible for a Court to permit a conservator to rewrite a trust "in place of" the trustee. The standard is very high, the conservator must show that the trustee drafted the trust under the undue influence of another person (almost invariably a beneficiary of the original trust), that the new trust is compatible with the trustee's intent had the trustee been competent, and the conservator must give notice of the proposed change to all beneficiaries under the original trust.

Santa Clara County Court has a website regarding probate with the applicable codes and links to the same that may be of assistance in this situation: http://www.scscourt.org/self_help/probate/conservatorship/conservatorship_overview.shtml

Regarding your specific situation, I do not know what the outcome of your case will be. I do not have the specific information, and cannot predict the outcome. I can tell you that it is not of any consequence that the court denied your request for oral argument, particularly in civil matters the appellate court takes very few oral arguments. I have only had two requests for oral argument granted and both dealt with multi-billion dollar industries and issues of newly passed statutes with unsettled law.

I have not read your orders, and cannot interpret yours specifically. I can tell you that the Court in California can reach you with sanctions (order you to pay money either to the Court or to the opposing parties for failure to comply with orders of the Court). Court orders are enforceable even while an appeal is pending regarding the appeal unless you have received a stay on the order pending the appeal - you must file a motion either with the trial court or appellate court to get such an order. I cannot advise you whether or not it is worthwhile to continue to ignore an order after this length of time, and I do not know the circumstances of your case regarding the other party's efforts to enforce the order.

I do not know whether or not the Court ruled appropriately, or whether it exercised its discretion appropriately. While I have found that most judges work to interpret the law and the facts fairly and appropriately, there are some that do not. I am not sure which category that your judge falls into, but if they are in the second category, I am hopeful that the appellate Court will see this and remedy any miscarriage of judgment.
Customer: replied 1 year ago.

The trust was not rewritten by the conservator. It was just totally ignored by the judge in everything he did. Also the durable power for medical treatment was ignored.


 


 


Here is the section of the probate code that seems to apply to our case. First we will try for a stay and appeal--




PROBATE CODE
SECTION 15640-15645


 


 


These are excerpts from 15640- 15645--


 


(9) For other good cause.


 


 


(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.


 


Here is what the judge used but he lied because we earned in excess of $1 million for the trust net of related expenses in 2011 and 2012—


 


(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.


 


--but we never lost money. Made $1.2 million in 2 years.


 


If this doesn't work it seem that--if I am accused of contempt by this kangaroo court--that I should be able to go in and dispute the contempt charge on the grounds that the judge issued an illegal order?


 


Has the court ruled appropriately? This conservator's daddy has a 12 acre ranch in Ojai. She has 70 conservatorship cases. Out of those 70, 7 are ttrust. Out of those 7 trusts, Judge Dredd has replaced 6 trustees with this conservator. In many cases the trusts had successor trustees who were passed over.


 


Here is what I believe we are dealing with--


 


http://www.victimsofguardians.net/


 


Isn't that a defense for not completely obeying a court order?? What other options do I have with a crooked court if the judge will not grant a stay (probably won't) and we do not get an appeal??


 


This is hard earned family money. These ambulance chasers, the crooked judge, and the crony conservator and ambulance chasing loser attorneys are feeding at the trust trough. As head of the family I feel I have a responsibility to try to do something.


 


We have counsel coming on the scene from our e and o carrier but I am still waiting for them. Maybe I just need to disobey a little of the court order and stall these vermin off until I get counsel??


 


Once I give up the money I am holding in Az, I have the feeling I will never get it back. The e and o attorneys will cover us for backcharges but will not defend the trust or get us back on it.


 


What to do?

Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

As we are discussing a trust with over a million dollars in income over a two year period, it may be wise to retain counsel specifically to deal with retention of the trust if that is your goal. Managing your appeal is a highly skilled task and the way in which your arguments are framed (in addition to the legal research) can make a significant difference in the way the Court is able to review the lower court's decision. I would highly recommend seeking out counsel to assist in this manner in addition to the e and o counsel to defend your acts. The two should be able to act in concert and reduce costs, but they are acting in different capacities.

I understand that you probably do not wish to have me tell you to "go hire an attorney" but given the scope of what you are dealing with, and your proposed course of action, that is the best advice I can give you. Our conversations are not subject to the attorney client privilege and they are public which makes it impossible for me to give you the kind of advice or guidance that you need to move your case forward. (Furthermore I am prohibited from practicing law on the forum).

It is possible to draft a motion to stay the trial court order to the appellate court directly if you wish. For timing purposes, the trial court will not generally take independent action to enforce its order, the other side must make a motion to the court asking for enforcement.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2958
Experience: Civil litigation attorney for individuals and businesses.
William B. Esq. and 17 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

What do you think about the idea of waiting for the conservator's attorney to file a motion to enforce the court order and then I file a counter petition to vacate the original court order on grounds that the accusations of the conservator were perjured--seems to be a bad faith argument available.


 


Would that work?


 


 

Expert:  William B. Esq. replied 1 year ago.
It is possible to do this, however, the legal argument weighs in the conservator's favor. The Court trial has already occurred, the court has issued a valid and enforceable order, and you are not complying with it.

The argument you have is that the matter is up on appeal (your remedy to address the perjury and other issues at trial leading to the change in conservators), and a stay on the transfer should be invoked to avoid loss.

The trial court will not generally revisit the facts of the trial in a motion to enforce.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2958
Experience: Civil litigation attorney for individuals and businesses.
William B. Esq. and 17 other Legal Specialists are ready to help you

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