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P. Simmons
P. Simmons, Lawyer
Category: Criminal Law
Satisfied Customers: 34975
Experience:  16 yrs. of experience including criminal law.
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My wifes father and his 2nd wife (my wifees stepmother) formed

Customer Question

My wife's father and his 2nd wife (my wifee's stepmother) formed a trust 4 years ago prior to his death in November 2010. This trust became irrevocable on his death 2 years ago. She became the trustee of the trust. We have documentation of the trust, as well as the documents of the assets of the trust in our possesion. She has refused to provide an accounting of the trust. We have retained an attorney in an effort to force her to provide documentation of the trust but she has simply not responded. We have made settlement offers to resolve the dispute and she has not responded. If an irrevocable trust is a state entity, and she is the designated adminstrator, at what point does this behavior of this manner, which seems to me to be deliberate fraud of a trust, become criminal? Would a Florida State prosecutor decide to investigate if we present this information? Her attorney takes months to respond to our letters and it is obvious that at this point they have no intention of resolving this matter and intend to keep all the assets of the trust.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  P. Simmons replied 5 years ago.
Thanks for the chance to assist on this matter. I am an attorney with over 12 years experience in criminal law.

There is often a broad line between civil and criminal court.

Example; Say a person negotiates a contract with another person to buy a car. The seller promises to deliver the car and the title once they receive payment via paypal. Lets say for this example both parties live in the same city in Florida. So the buyer transfers funds, the seller takes the money and refuses to deliver the car. And lets just say, for arguments sake, the seller never intended to give the car, they wanted the money and the car. Technically, that is theft.

And that can be prosecuted as a civil case and/or as a civil case.

So, what happens when the buyer complains to the local police?

Most cases the police would simply say "this is a civil matter"

Technically, it is a criminal matter. It is the state of mind of the seller that makes it criminal.

But that is the rub...see, to prove the case, the prosecutor needs to prove, beyond a reasonable doubt, that the seller intended to steal.

And in a single case like this? That can be hard to do...they (the seller) may claim that the deal was for more money, and that the buyer did not pay the proper amount, etc...

And the prosecutor has discretion.

You can not force them to prosecute.

So, in your case, what you describe sure sounds like fraud. The trustee has a fiduciary duty to the beneficiary. If they breach that duty they can be sued in civil court.

And, IF you can prove they are doing this on deny the beneficiary access to the funds in order to keep the money for themselves? That would be criminal fraud. to get he prosecutor to take the case?

depends...depends on the prosecutor.

The prosecutor has discretion to allow the system to work. You could not prosecute every possible crime...the system would have to "pick your battles"

But if you have a case where it is clear, from the records, that the trustee is taking the action to enrich herself? ANd you can lay this out for a prosecutor? They may well take the case on.

I would have your lawyer approach the prosecutor with the evidence you have and ask for may well get it.