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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 42326
Experience:  Texas lawyer for 30 years in Estate law
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If a Trustee is also a beneficiary, how does the law separate

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If a Trustee is also a beneficiary, how does the law separate legal fees if the Trustee is being sued for gross negligence
Thanks for your question and good evening.Can you give me some more information here please about your situation so that I may respond to you and help..
I am going to provide you some information here, please let me know if you have more follow up.I read your prior questions in your trust situation.

Here if the trustee has breached the fudiciary duties to you and the other beneficiaries you would be able to file suit and seek damages to be repaid tot he trust and lawyer fees as well to be paid back to the trust by the trustee.

Probate Code Sec. 16400 defines a breach of trust as a violation of any fiduciary duty and can be separated into three types: ordinary negligence, gross negligence (recklessness) and intentional (willful) breach of trust. Any amount that a trustee is ordered to pay to a trust is commonly referred to as a surcharge.

So here the court may order repayment of the surcharge from the trustee personally including any legal fees he has paid out of the trust if he is found to be grossly negligent in the management of the trust.
Customer: replied 4 years ago.

I guess the more I am reading, the more it appears that Trustees almost have to commit murder to be found guilty in this are of the law. Can you explain why there are so many great probate code sections written, but it is extremely difficult to get a trustee to pay for not following any of these guidelines.

Laws are great, but if the courts won't enforce the law you are stuck.

I do not agree they have to commit murder so to speak to be help liable here.If they have committed intentional acts here or clearly negligent in their duties to the beneficiaries they may be held accountable here.I would not give up on this situation.

Often by filing suit you use civil discovery to uncover additional wrongdoing.It is not always known what all has been going on the amount and number of acts of harm a trustee has done at the beginning of the suit.During the course of discovery a lawyer may well be able to build the case to the level that you can recover damages including legal fees, and court costs.



This may include forcing production of accounting records, business transactions, etc on behalf of the trust.This may reveal many additional problems unknown to the beneficiaries.

Here is great reference outlining the mandated duties of the trustee and cases where they have been held liable for their conduct/misconduct.You should not be discouraged here at the beginning much may come out during discovery that may help you previal.

I appreciate the chance to assist you tonight.I hope you have good luck with the suit and recovery.

I hope that you will be so kind as to leave a positive rating. If you do have any additional questions about my answer please click the "Continue Conversation Link" so I can provide you with a fully satisfactory answer. Please be aware that any rating of 1 or 2 is reflected as a negative rating and I receive no credit for my answers.



This communication does not establish an attorney client relationship here.Information provided is not legal advice. Rather it is simply general information.



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