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this question is for socrateaser. i asked you a question on

july 16, 2013, and, previous...
this question is for socrateaser. i asked you a question on july 16, 2013, and, previous questions months ago so, you do have some history regarding my situation. anyway, i met with a trust/estate attorney today, a new attorney recommended by my previous attorney. the new attorney said some things that for me are hard to understand and accept. we talked about errors in my parents trust document. incorrect verbage that implies a different result than what my parents wanted. i'm going to assume you would want to see the errors to give your interpretation. but, the botXXXXX XXXXXne seems to be according to this new attorney is that these errors are scribners (sp?) notes and attorneys are allowed great latitude by the courts to make such errors and such errors can not be used to void the trust. this new attorney also said the trustees can pretty much spend trust income any way they want and apparently there is little oversite.
as i said in a previous question i was trustee for awhile. after my dad died ( mom died first) it was my understanding that we (my brothers and myself) should do an equal distribution. well, they basically raided my parents house taking very expensive items. i took nothing. even though i have an inventory of what my parents had and know pretty well who took what, this new attorney basically says i'm screwed. it's my word against brothers and i can't file a police report and ask that brothers houses be searched.
i'm not going to ramble on any further. but, i feel i've been cheated out of my inheritance and i just can't accept that there is no legal course i can take to assert my rights as a former trustee and as a current beneficiary. i'd be very interested in your thoughts. thanks, j
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Answered in 48 minutes by:
9/10/2013
socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 39,387
Experience: Retired (mostly)
Verified
Hello again,

Without reading the trust instrument, I'd be making a wild guess as to your rights. I doubt that this attorney with whom you met has any interest in deceiving you. But, if you want me to read the trust, you can upload it to www.mediafire.com and give me a link to the file. Please redact any personally identifiable information from the document.

As far as contacting the police and claiming that your brothers stole the property, if you have an inventory, and the trust requires an equal distribution, then you can contact law enforcement and make a report. The problem is that the police tend to refuse involvement in estate issues, because it's easier to just let the heirs fight it out in civil court. So, you can file a complaint -- just don't be surprised if it goes nowhere.

You will probably have to sue, if you want to try to recover any of the personal property.

Please let me know if I can be of further assistance.
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Customer reply replied 4 years ago

what does redact mean. it will take me some time to scan and send trust doc. i appreciate your offer to look at the trust but, are you not going say that the verbage of the trust prevails even though it doesn't do what my parents wanted. on that note iwas going to say in my previous question that my mom wrote her (and dad's) trust attorney several times requesting that he change the trust. he didn't respond and therefore did not change the trust claiming my mom was not compent to request such a change. the irony is that about a month after her written requests she was deemed compent by a probate judge to enter into a voluntary guardianship/conservatorship. i told this today to my new attorney and he said attorneys have the latitude to determine whether someone is compentent to execute a will or trust on any given day whether they are 25 or 85.

Redact means "black out." Also, the term is "scrivener errors."

If the trust is written against your interests, then you are pretty much at your brothers' mercy. If they want to screw you, then they will, and I suppose if I were in your shoes, that would probably be the last time I would communicate with either of them during my lifetime.

Here's the botXXXXX XXXXXne: if you want to fight and try to prove that your parents were incompetent when the trust was made, then you can do it. But, you will spend $20,000 easy to try to make that sort of case -- and, you may lose. So, you have to decide if the gamble is worth the risk. Because that's really what you're doing -- you're betting that you can make a clear and convincing case to overcome the presumption that your parents were mentally incompetent at the time the trust was written.

That's the only way you can win. So, if there is no physician or psychologist who was involved at the time, who will testify in your interests, then you may have no choice but to "fold up the tent" and move on with your life.

It's sad when your relatives mistreat you. But, it happens every day. Way of the world, unfortunately. We are all still just one step removed from our primeval ancestors.

Hope this helps.
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Customer reply replied 4 years ago


well, i don't think my parents were incompetent when they signed trust docs in 2003. i don't hink they were incompetent when they asked for changes in 2008. the smoking gun is that the trust attorney and one of my older brothers are high school buddies; army reserve buddies and this attorney has done my brothers taxes for 35 years. what further suspicious is that my dad had a long time attorney (qualified to do estates/trust work). then my brother friends comes on the scene in 2003. my dad told me several times that he had current attorney do the trust because he was a freind of my brothers and that he was catholic. dad also told me mom had no input in composing her trust because she was not knowledgable in these matters. my dad was a chauvenist. he was also a doctor and their major assets were in mom's name in case he ever got sued. actually, my mom inherited a farm so it was always in her name up until 2003, when it was put in her trust name as it remains to this day even though iv'e been told her trust has ended. my older brother was also my parents stockbroker and managed a rather large portfolio. he made disbursements; transfered money from a conservatorship account back and forth with the trust account. something just doesn't seem right to me. i have been told that current trust attorney probably shouldn't have gotten involved and my stockbroker brother shouldn't be a trustee. what's your opinion. thanks, j

There's no conflict of interest for the attorney unless the attorney gets something from the trust as a beneficiary. And, your brother wouldn't have had a conflict based solely on his familial relationship. Obviously, if you were removed from the trust by an attorney who was recommended by your brother, then that could be evidence of undue influence.

It's still a crap shoot. The case will likely end up in front of a jury, and you will have to convince them that you're version of the facts are more likely than your brother's. You would need a lawyer who really knows how to work a jury -- and that sort of lawyer is very expensive -- because it's an art form. Most attorneys cannot turn that hat trick.

It's doable -- but it won't be easy, and you will spend a lot of dough to find out if you're the winner.

Hope this helps.
socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 39,387
Experience: Retired (mostly)
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Customer reply replied 4 years ago


well, for the potential of getting $700,000 dollars it may be worth a shot. thanks so much for your input.

Customer reply replied 4 years ago


socrateaser, iv'e decided to take you up on your offer to send you my mom's trust to www.mediafire.com. but, once i get to mediafire what do i do. thanks,

Provide a link to the file, so I can read it.
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Customer reply replied 4 years ago

sorry, i'm not familiar with mediafire. where do i put the link so, you will find it.

Rollover the file name with your mouse. Click on the down arrow in the circle that appears at the right of the file. Click on the "Copy Link" selection. past the link into your Reply in the justanswer.com Reply box. When you post the link, I can find the file and download it.

Thanks in advance.
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Customer reply replied 4 years ago

did justanswer get you my mom's trust document. if so, have you had time to review it. thanks, j

Hello,

From what I can see, the material provisions of the trust appoint two children as co-successor trustees, require that the trustees provide rules by which all children may equitably (fairly) use the trust real estate/property, and at the death of the last child, the grandchildren shall take the remainder of the trust property; provided however, that if a majority of trustees determine to terminate the trust early, they can do so, but must distribute the trust property equitably between all of the settlors' children.

If you have evidence of the personal effects taken from the real property, then you could sue your brothers for an accounting and for removal as trustee for breach of fiduciary. If you have no inventory, then as the attorney said, it's your word against your brother as to what was in the property at the time your parent's death.

I'm not sure what else you would like to know here -- so, I will wait for your reply.

Hope this helps.
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Customer reply replied 4 years ago

first, i really appreciate you looking at this trust. did you percieve that there is a lot of vagueness in the document. for example, it says that the lake home is to be equitably used. my thought has been what does that mean. the traditional recreational time period for this resort lake is memorial day thru labor day. but, what prevents the trustees (my 2 older brothers) from saying to me "you can't use the lake home during the summer but, you can use it any time from october thru april". so, can i ask the probate judge to "amend" the trust document to be more specific. i haven't read any where in the document that specifically states what is to be done with my parents personal property or domicile after they are both dead. did you. as you interpreted; the trust eventually leaves the bulk (highest value) of my parents assets to current grandchildren. that is absolutely not what my mom wanted. she told the trust attorney that verbally and in writting and he refused to change her trust. contrarily in march of 2007, in a letter to my parents and cc to myself and brothers that the trust was not fair to myself and my older brother since we did not have children nor, spouses; and, that the trust as it stands will cause family dissention which it has. why would he have composed a trust initially if he knew these future outcomes.


as you can probably imagine i have many questions and it wouldn't be fair to address them all to you. my problem has been i just haven't been able to find an attorney who will or can answer most of my questions. that's why iv'e been pushing for a hearing and trying to get a probate judges interpretation. is that something a probate judge would do. thanks, j

first, i really appreciate you looking at this trust. did you perceive that there is a lot of vagueness in the document. for example, it says that the lake home is to be equitably used. my thought has been what does that mean.


A: It means fair and balanced, i.e., equal.

 

the traditional recreational time period for this resort lake is memorial day thru labor day. but, what prevents the trustees (my 2 older brothers) from saying to me "you can't use the lake home during the summer but, you can use it any time from october thru april". so, can i ask the probate judge to "amend" the trust document to be more specific.


A: No. You can sue the trustees for what you believe to be a breach of fiduciary, by their restricting your use to that which is not equitable. The court can order that you may use the property during summer, or it could remove the trustees entirely. But, it cannot amend the trust, because the terms and conditions are clear enough to permit an equitable resolution.

 

i haven't read any where in the document that specifically states what is to be done with my parents personal property or domicile after they are both dead. did you.


A: It appears to me that the property is to be distributed equally among the children, or grandchildren at the termination of the trust.

 

as you interpreted; the trust eventually leaves the bulk (highest value) of my parents assets to current grandchildren.


A: The trust leaves the property to the grandchildren, unless the trustees decide to terminate the trust early. So, it is quite possible for the grandchildren to receive nothing -- except through their respective parents -- dependent upon the trustees' determinations, prior to their death.

 

that is absolutely not what my mom wanted. she told the trust attorney that verbally and in writing and he refused to change her trust. contrarily in march of 2007, in a letter to my parents and cc to myself and brothers that the trust was not fair to myself and my older brother since we did not have children nor, spouses; and, that the trust as it stands will cause family dissension which it has. why would he have composed a trust initially if he knew these future outcomes.

 

A: I must respectfully disagree. The trust states what your mom absolutely wanted -- and if she wanted something else, then she could have amended the trust. She did not, therefore the trust provisions control -- not her writings or oral instructions to her attorney. The reason why this is the law, is so that disputes such as you describe cannot occur. Everyone is on notice that if they want a specific result to occur after their death, then need to make that result unambiguously clear by following the law to provide for the distribution of their estate. You will lose this particular argument, if you bring it to a court.

 

as you can probably imagine i have many questions and it wouldn't be fair to address them all to you. my problem has been i just haven't been able to find an attorney who will or can answer most of my questions. that's why iv'e been pushing for a hearing and trying to get a probate judges interpretation. is that something a probate judge would do.

A: This is not a probate matter. It's a trust dispute. A trust is a contract, subject to dispute resolution using contract law interpretation. If you want to challenge the trustees acts or omissions, or the trust provisions, then you must sue the trustees for breach of trust and or fiduciary. A probate judge has no jurisdiction to simply order a hearing to rule on the trust provisions.

Hope this helps.
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Customer reply replied 4 years ago

well, i'm not trying to beat this to death with you but, i don't understand how my mom could have amended her trust other than requesting to her trust attorney to do it. she didn't know any other attorenys. i found her some other attorneys but, they would not take on the situation until she fired the current trust attorney which she was afraid to do. so, is there any recourse against the past and present attorney for failure to preform.

You're missing the point: your mother could instruct the attorney to make changes, and if she was ignored, then she could hire another attorney to amend the trust. Your mother remained principally responsible for the maintenance of her testamentary instruments.

Concerning the attorney, there could be a claim of breach of fiduciary and loyalty (malpractice), if it could be shown that the attorney ignored your mother's instructions, and by doing so, your interests in the estate were damaged. But, then you would have to prove that your mother's writings to her attorney represented her final determination of what should be done with her trust instrument. And, that is not easily accomplished -- because people change their mind -- and one of the ways that evidence is provided to prove that someone has changed their mind about amending a trust, is by showing that the trust wasn't amended.

Your burden of proof would be to show that the trust wasn't amended because the attorney ignored your mother. The attorney would defend that your mother changed her mind. It's reasonable that the attorney should have sent a letter to your mother confirming that she did not want to amend the trust, once she had written that she wanted to amend.

Bottom line, you could sue the attorney for malpractice. You probably would have to ask the court to appoint you personal representative of your mother's estate (other than that of the trust itself), so that you could step into your mother's shoes.

There won't be many lawyers willing to pursue this sort of case -- unless you're prepared to pay attorney's fees up front. And, you could spend a lot of money in this exercise. I could easily see more than $25,000 being expended in attorney's fees. And, you could lose.

So, as previously mentioned, this is a "crap shoot." You're betting that you can beat the attorney and obtain damages sufficient to compensate you for what you lost from the failure to amend the trust. Most attorneys do not carry $700,000 in professional liability insurance coverage. So, unless the lawyer has a lot of net worth, you may be wasting your time, because you won't collect, even if you win.

I'm not trying to paint a bleak picture, but at the end of the day, it's not winning a case that matters -- it's collecting on the judgment. And, that's frequently not nearly as easy as may be believed.

That pretty much "covers the waterfront" on the issues. Hope this helps.
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Customer reply replied 4 years ago

well, i very much appreciate your time and input. unfortunately, i feel extremely sick to my stomach. i feel greatly cheated by my brothers and, i can't accept that the "law" allows that. and, as you said earlier in the discourse " if i you were in your shoes that would be the last time i would communicate with either of them (my bothers) in my lifetime". and, that's the way iit will be with me; and that's absolutely what my parents wouldn't want.

The law allows many unfair things. I could give you examples of actual cases that you would not believe possible. Ultimately, what the law allows is up to We the People, and indirectly by judges who make a conscious choice to avoid interpretations which put individual rights above those of machinery of the state. The founders would not have favored the modern interpretation of how the law works.

Unfortunately, we are all prisoners of a system that is irremediably broken. So, while you have options, they are all expensive. You'll have to choose whether to risk that expense.

I wish you peace, because that's the best wish I can provide.
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