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Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 37044
Experience:  30 years in civil, probate, real estate, elder law
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My brother who is the trustee will not let my siblings and I

Customer Question

My brother who is the trustee will not let my siblings and I see the books relating to the day to day accounting of the business. What can we do to force him to produce the day to day operating records of the business?
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you today.

You may consider a local trust lawyer to send demand letter threatening a removal action based on failure to communicate with the beneficiaries.If the trustee refuses you after such a demand letter you may consider a removal action and a court ordered accounting.You hope a demand letter gets you what you need here but if not the Superior Court in the county where trust is located is where you would file such an action under California law.

Law for 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.

Here are your rights here as far as accountings..

16060. The trustee has a duty to keep the beneficiaries of thetrust reasonably informed of the trust and its administration.16060.5. As used in this article, "terms of the trust" means thewritten trust instrument of an irrevocable trust or those provisionsof a written trust instrument in effect at the settlor's death thatdescribe or affect that portion of a trust that has becomeirrevocable at the death of the settlor. In addition, "terms of thetrust" includes, but is not limited to, signatures, amendments,disclaimers, and any directions or instructions to the trustee thataffect the disposition of the trust. "Terms of the trust" does notinclude documents which were intended to affect disposition onlywhile the trust was revocable. If a trust has been completelyrestated, "terms of the trust" does not include trust instruments oramendments which are superseded by the last restatement before thesettlor's death, but it does include amendments executed after therestatement. "Terms of the trust" also includes any documentirrevocably exercising a power of appointment over the trust or overany portion of the trust which has become irrevocable.16060.7. On the request of a beneficiary, the trustee shall providethe terms of the trust to the beneficiary unless the trustee is notrequired to provide the terms of the trust to the beneficiary inaccordance with Section 16069.16061. Except as provided in Section 16069, on reasonable requestby a beneficiary, the trustee shall report to the beneficiary byproviding requested information to the beneficiary relating to theadministration of the trust relevant to the beneficiary's interest.16061.5. (a) A trustee shall provide a true and complete copy ofthe terms of the irrevocable trust, or irrevocable portion of thetrust, to each of the following: (1) Any beneficiary of the trust who requests it, and to any heirof a deceased settlor who requests it, when a revocable trust or anyportion of a revocable trust becomes irrevocable because of the deathof one or more of the settlors of the trust, when a power ofappointment is effective or lapses upon the death of a settlor underthe circumstances described in paragraph (3) of subdivision (a) ofSection 16061.7, or because, by the express terms of the trust, thetrust becomes irrevocable within one year of the death of a settlorbecause of a contingency related to the death of one or more of thesettlors of the trust. (2) Any beneficiary of the trust who requests it, whenever thereis a change of trustee of an irrevocable trust. (3) If the trust is a charitable trust subject to the supervisionof the Attorney General, to the Attorney General, if requested, whena revocable trust or any portion of a revocable trust becomesirrevocable because of the death of one or more of the settlors ofthe trust, when a power of appointment is effective or lapses uponthe death of a settlor under the circumstances described in paragraph(3) of subdivision (a) of Section 16061.7, or because, by theexpress terms of the trust, the trust becomes irrevocable within oneyear of the death of a settlor because of a contingency related tothe death of one or more of the settlors of the trust, and wheneverthere is a change of trustee of an irrevocable trust. (b) The trustee shall, for purposes of this section, rely upon anyfinal judicial determination of heirship. However, the trustee shallhave discretion to make a good faith determination by any reasonablemeans of the heirs of a deceased settlor in the absence of a finaljudicial determination of heirship known to the trustee.16061.7. (a) A trustee shall serve a notification by the trustee asdescribed in this section in the following events: (1) When a revocable trust or any portion thereof becomesirrevocable because of the death of one or more of the settlors ofthe trust, or because, by the express terms of the trust, the trustbecomes irrevocable within one year of the death of a settlor becauseof a contingency related to the death of one or more of the settlorsof the trust. (2) Whenever there is a change of trustee of an irrevocable trust. (3) Whenever a power of appointment retained by a settlor iseffective or lapses upon death of the settlor with respect to aninter vivos trust which was, or was purported to be, irrevocable uponits creation. This paragraph shall not apply to a charitableremainder trust. For purposes of this paragraph, "charitableremainder trust" means a charitable remainder annuity trust orcharitable remainder unitrust as defined in Section 664(d) of theInternal Revenue Code. (4) The duty to serve the notification by the trustee pursuant tothis subdivision is the duty of the continuing or successor trustee,and any one cotrustee may serve the notification. (b) The notification by the trustee required by subdivision (a)shall be served on each of the following: (1) Each beneficiary of the irrevocable trust or irrevocableportion of the trust, subject to the limitations of Section 15804. (2) Each heir of the deceased settlor, if the event that requiresnotification is the death of a settlor or irrevocability within oneyear of the death of the settlor of the trust by the express terms ofthe trust because of a contingency related to the death of asettlor. (3) If the trust is a charitable trust subject to the supervisionof the Attorney General, to the Attorney General. (c) A trustee shall, for purposes of this section, rely upon anyfinal judicial determination of heirship, known to the trustee, butthe trustee shall have discretion to make a good faith determinationby any reasonable means of the heirs of a deceased settlor in theabsence of a final judicial determination of heirship known to thetrustee. (d) The trustee need not provide a copy of the notification bytrustee to any beneficiary or heir (1) known to the trustee but whocannot be located by the trustee after reasonable diligence or (2)unknown to the trustee. (e) The notification by trustee shall be served by mail to thelast known address, pursuant to Section 1215, or by personaldelivery. (f) The notification by trustee shall be served not later than 60days following the occurrence of the event requiring service of thenotification by trustee, or 60 days after the trustee became aware ofthe existence of a person entitled to receive notification bytrustee, if that person was not known to the trustee on theoccurrence of the event requiring service of the notification. Ifthere is a vacancy in the office of the trustee on the date of theoccurrence of the event requiring service of the notification bytrustee, or if that event causes a vacancy, then the 60-day periodfor service of the notification by trustee commences on the date thenew trustee commences to serve as trustee. (g) The notification by trustee shall contain the followinginformation: (1) The identity of the settlor or settlors of the trust and thedate of execution of the trust instrument. (2) The name, mailing address and telephone number of each trusteeof the trust. (3) The address of the physical location where the principal placeof administration of the trust is located, pursuant to Section17002. (4) Any additional information that may be expressly required bythe terms of the trust instrument. (5) A notification that the recipient is entitled, upon reasonablerequest to the trustee, to receive from the trustee a true andcomplete copy of the terms of the trust. (h) If the notification by the trustee is served because arevocable trust or any portion of it has become irrevocable becauseof the death of one or more settlors of the trust, or because, by theexpress terms of the trust, the trust becomes irrevocable within oneyear of the death of a settlor because of a contingency related tothe death of one or more of the settlors of the trust, thenotification by the trustee shall also include a warning, set out ina separate paragraph in not less than 10-point boldface type, or areasonable equivalent thereof, that states as follows: "You may not bring an action to contest the trust more than 120days from the date this notification by the trustee is served uponyou or 60 days from the date on which a copy of the terms of thetrust is mailed or personally delivered to you during that 120-dayperiod, whichever is later." (i) Any waiver by a settlor of the requirement of serving thenotification by trustee required by this section is against publicpolicy and shall be void. (j) A trustee may serve a notification by trustee in the formrequired by this section on any person in addition to those on whomthe notification by trustee is required to be served. A trustee isnot liable to any person for serving or for not serving the notice onany person in addition to those on whom the notice is required to beserved. A trustee is not required to serve a notification by trusteeif the event that otherwise requires service of the notification bytrustee occurs before January 1, 1998.16061.8. No person upon whom the notification by the trustee isserved pursuant to this chapter, whether the notice is served on himor her within or after the time period set forth in subdivision (f)of Section 16061.7, may bring an action to contest the trust morethan 120 days from the date the notification by the trustee is servedupon him or her, or 60 days from the day on which a copy of theterms of the trust is mailed or personally delivered to him or herduring that 120-day period, whichever is later.16061.9. (a) A trustee who fails to serve the notification bytrustee as required by Section 16061.7 on a beneficiary shall beresponsible for all damages, attorney's fees, and costs caused by thefailure unless the trustee makes a reasonably diligent effort tocomply with that section. (b) A trustee who fails to serve the notification by trustee asrequired by Section 16061.7 on an heir who is not a beneficiary andwhose identity is known to the trustee shall be responsible for alldamages caused to the heir by the failure unless the trustee showsthat the trustee made a reasonably diligent effort to comply withthat section. For purposes of this subdivision, "reasonably diligenteffort" means that the trustee has sent notice by first-class mail tothe heir at the heir's last mailing address actually known to thetrustee. (c) A trustee, in exercising discretion with respect to the timingand nature of distributions of trust assets, may consider the factthat the period in which a beneficiary or heir could bring an actionto contest the trust has not expired.16062. (a) Except as otherwise provided in this section and inSection 16064, the trustee shall account at least annually, at thetermination of the trust, and upon a change of trustee, to eachbeneficiary to whom income or principal is required or authorized inthe trustee's discretion to be currently distributed. (b) A trustee of a living trust created by an instrument executedbefore July 1, 1987, is not subject to the duty to account providedby subdivision (a). (c) A trustee of a trust created by a will executed before July 1,1987, is not subject to the duty to account provided by subdivision(a), except that if the trust is removed from continuing courtjurisdiction pursuant to Article 2 (commencing with Section 17350) ofChapter 4 of Part 5, the duty to account provided by subdivision (a)applies to the trustee. (d) Except as provided in Section 16064, the duty of a trustee toaccount pursuant to former Section 1120.1a of the Probate Code (asrepealed by Chapter 820 of the Statutes of 1986), under a trustcreated by a will executed before July 1, 1977, which has beenremoved from continuing court jurisdiction pursuant to former Section1120.1a, continues to apply after July 1, 1987. The duty to accountunder former Section 1120.1a may be satisfied by furnishing anaccount that satisfies the requirements of Section 16063. (e) Any limitation or waiver in a trust instrument of theobligation to account is against public policy and shall be void asto any sole trustee who is either of the following: (1) A disqualified person as defined in Section 21350.5. (2) Described in subdivision (a) of Section 21380, but notdescribed in Section 21382.16063. (a) An account furnished pursuant to Section 16062 shallcontain the following information: (1) A statement of receipts and disbursements of principal andincome that have occurred during the last complete fiscal year of thetrust or since the last account. (2) A statement of the assets and liabilities of the trust as ofthe end of the last complete fiscal year of the trust or as of theend of the period covered by the account. (3) The trustee's compensation for the last complete fiscal yearof the trust or since the last account. (4) The agents hired by the trustee, their relationship to thetrustee, if any, and their compensation, for the last complete fiscalyear of the trust or since the last account. (5) A statement that the recipient of the account may petition thecourt pursuant to Section 17200 to obtain a court review of theaccount and of the acts of the trustee. (6) A statement that claims against the trustee for breach oftrust may not be made after the expiration of three years from thedate the beneficiary receives an account or report disclosing factsgiving rise to the claim. (b) All accounts filed to be approved by a court shall bepresented in the manner provided in Chapter 4 (commencing withSection 1060) of Part 1 of Division 3.16064. The trustee is not required to account to a beneficiary asdescribed in subdivision (a) of Section 16062, in any of thefollowing circumstances: (a) To the extent the trust instrument waives the account, exceptthat no waiver described in subdivision (e) of Section 16062 shall bevalid or enforceable. Regardless of a waiver of accounting in thetrust instrument, upon a showing that it is reasonably likely that amaterial breach of the trust has occurred, the court may compel thetrustee to account. (b) As to a beneficiary who has waived in writing the right to anaccount. A waiver of rights under this subdivision may be withdrawnin writing at any time as to accounts for transactions occurringafter the date of the written withdrawal. Regardless of a waiver ofaccounting by a beneficiary, upon a showing that is reasonably likelythat a material breach of the trust has occurred, the court maycompel the trustee to account. (c) In any of the circumstances set forth in Section 16069.

I appreciate the chance to help you today.Please let me know if you have more follow up.Thanks again.

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