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Loren
Loren, Attorney
Category: Legal
Satisfied Customers: 29027
Experience:  30 years experience representing clients.
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I have an estate case involving a trust (in IL) of which I

Customer Question

I have an estate case involving a trust (in IL) of which I was one of the beneficiaries. It started when the other beneficiary, also the trustee of said trust, refused to provide me with an accounting, which the court has already conceded I am entitled to. I am now on my second lawyer. The first atty got some info for me, in dribbles, bits and pieces. I literally had to fight him for every bit of it, culminating in an unofficial spreadsheet of an accounting which he felt should suffice, and the judge's wrath at our 'Waste of the court's time". He then quit the case. The one good thing he did accomplish is (apparently erroneously) obtain a copy of a joint acct contained within the trust which contained a lot of info I was able to pursue. I then hired a second atty who is much more professional and advised me that what I received was not a legal binding doc, as far as accounting goes. Again there was a big battle. The really sad part is that this is over a very small amount of money, for me, at least. The second atty thought she could retrieve about 20,000 which then dwindled to 17, then 12, now hopefully, hopefully, maybe 8. Her explanation: she had not taken expenses (clearly marked on the original spreadsheet) into acct. My question: why not? If someone is going to lie in a situation like this, it won't be about their expenses incurred. A deposition produced evidence of a trust acct, the final statement of which (and only the final statement at date of death) has been provided in the new official version of the acct allowed by the court. I want to see prior bank statements from that acct. but this atty is saying I am not entitled to see them. I feel it crucial to see it as it seems to be the only way to discover any add'l assets. Assets were being transferred back and forth between the aforementioned two accts and others. The terms of the trust did indeed give unlimited power to the trustee, but also contained no language as to confidentiality. The atty feel that delving into the deceased dementia is the only way to justify demanding records of that acct. and would be too expensive.
What is your opinion, is she right or is there any other legal loophole that could be used to obtain the trust acct statements, and was she correct in not including expenses in her estimation of my shortfall?
Submitted: 1 year ago.
Category: Legal
Expert:  Loren replied 1 year ago.

Good morning. I am Loren, an licensed attorney, and I look forward to assisting you this morning.

Expert:  Loren replied 1 year ago.

Have you sued the trustee for breach of fiduciary duty?

Expert:  Loren replied 1 year ago.

Are you online with me?

Customer: replied 1 year ago.
i made my deposit, and posted my question and not received an answer related to my question. have i sued for fiduciary duty. no, still retrieving accounting. atty says motion is wrong for retrieving of money which is my goal for any proceedings in this case
Expert:  Loren replied 1 year ago.

If you believe the trustee is hiding funds or moving funds in violation of the trust agreement then you can sue the trustee for waste and breaching fiduciary duty.

Expert:  Loren replied 1 year ago.

The account statements would be relevant to such a claim and could be demanded in a discovery request.

Expert:  Loren replied 1 year ago.

Did you have further questions? Have I answered your question?

Expert:  Loren replied 1 year ago.

If you have no further questions, and have not yet done so, please remember to leave a favorable rating (Excellent or Good) so that I am credited for assisting you. A bonus is not required, but is always appreciated.

Customer: replied 1 year ago.
my atty is saying that per the trust, only what was left by the deceased on date of death is questionable and therefore what was in the trust account and how it was handled prior to that is none of my business. i am questioning it because by obtaining the joint acct I was able to discern frivolous expenditures. The will left 1/4 of the estate to me, but it seems that portion was greatly reduced simply by expenditures made prior to death. I think that retrieving statements of the trust acct might reveal more frivolous expendititures, but my atty states it would require opening a new case (by filing new motion), having to hire expert witnesses to prove dimentia, etc. and does not feel it at all cost effective, so is refusing to sapoena the trust acct. statements. Of the $36,000 i inherited i have already spent $4000 on RETAINERS just to get an accounting. The new case would be just that - a new case and new expenses. The 1st atty depended solely on me presenting him with leads on the assets, knowing i had no knowledge of such, and then presenting those leads one by one to the court- leading the judge to fury at my expense, then bowing out. This atty was smart enough to take those already established "leads" and compare them to the deceased tax records. My contention is: she advised me of the case mismanagenment by my previous atty, knew my goals for suing (recovery of monies from estate i.e. to make more money), led me to believe there was more money to be recovered than there now appears to be by "not counting the expenditures" (who does that?) and now wants an amended complaint and more money to pursue a quickly diminishing unspecified amount (at last count, possibly $8ooo), and is refusing to subpoena the statements prior to the deceadent death of the trust acct. She finally retrieved an official legal accounting, but directed me to seek the counsel of a CPA to check it. Does this sound right and what can I do about it, short of hiring still another atty?
Customer: replied 1 year ago.
sorry, typo in line 9, this atty should be next atty (atty #2).
Customer: replied 1 year ago.
Meanwhile the opposing counsel has filed numerous motions for dismissal, and threatened countersuit based on retrieving money from the joint acct which supposedly the trustee was not aware of at the time of dispersal, that it need not be dispersed.
Expert:  Loren replied 1 year ago.

Well, that wuld b a way to,force access to the acoount statements.

Otherwise, your attorney is correct, you would not be entitled to account statements by virtue of a court ordered accounting. You would need to alter the strategy and bring in allegations of waste or breach of fiduciary duty, which would, by implication, require the statements be produced.

Expert:  Loren replied 1 year ago.

As far as expense, if the trustee has breached their fiduciary duty, you may be entitled to an award of attorney fees and punitive damages.

Expert:  Loren replied 1 year ago.

The other possibility is a malpractice claim against the first attorney for mismanaging the case.

Customer: replied 1 year ago.
aren't trust accounts, by virtue of their "trust" nature, be subject to verification by beneficiaries from their very inception, without further proceedings?
Expert:  Loren replied 1 year ago.

Not really, Trusts are, by law, private concerns and not subject to disclosure beyond the requirement of the summary accounting. To get a more indepth view there would need to be allegations of misfeasance on the part of the trustee.

Expert:  Loren replied 1 year ago.

Accountings are more summary in nature and not really meant to be forensic.

Expert:  Loren replied 1 year ago.

You need the discovery procees to get what you are seeking.

Customer: replied 1 year ago.
but wasn't that the purpose to the Complaint for Accounting. Or could/should the attyhave used a different type of motion from the onset of this case?
Expert:  Loren replied 1 year ago.

It is hard to what that they should have done this, since that is hindsight, but that is what you need to do to get account statements.

Expert:  Loren replied 1 year ago.

That may not have been appearant at the time the case commenced that it would come to this.

Customer: replied 1 year ago.
sorry your response was garbled. isn't a Complaint for Accounting the same as a discovery (for accounting)?
Expert:  Loren replied 1 year ago.

Discovery is a part of the information gathering process when a claim is litigated.

Customer: replied 1 year ago.
Again, isn't Complaint 4 Accounting another way of asking for or wording a request for discovery of assets and expenditures?
Expert:  Loren replied 1 year ago.

No, an accounting is summary in nature and would not include account statement.

Expert:  Loren replied 1 year ago.

It would show opening balance, transactions and closing balance for the accounting period. It would not differentiate the various accounts.

Customer: replied 1 year ago.
then what would have been the correct document/motion to file in order to obtain as much DETAILED information regarding the assets and expenditures of the trust from the very onset of this case? If it was not apparent from the onset, it certainly should have been apparent by the time the 2nd atty took over, shouldn't it and the motion amended at that time?
Expert:  Loren replied 1 year ago.

I have already said that you would need to file suit for mal or misfeasance by the trustee.

Expert:  Loren replied 1 year ago.

You would need to.discuss the matter with the 2nd attorney regarding what he should have done, as I was not privy to your conversations.

Expert:  Loren replied 1 year ago.

If you have no further questions, and have not yet done so, please remember to leave a favorable rating (Excellent or Good) so that I am credited for assisting you. A bonus is not required, but is always appreciated.