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CalAttorney2, Attorney
Category: Estate Law
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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My dad dies in 2004 with a living trust and a pour over

Customer Question

My dad dies in 2004 with a living trust and a pour over will. He had a house, vacant lot, and a car deeded to trust. I contacted a Trust Attorney because there are 12 heirs (sibslings) and not all siblings loved dad. Anyway, 2 heirs owed him money and he had records and keep asking for payment until his stroke at 90 yrs. of age. He had a good mind and lived on own. I contacted attorney to see if the two heirs owed money. Attorney kept my dad's trust book and contacted their attorney and decision was that ethically they owed money, but the limitations were over.
Well, Hurricane Katrina hit and house damaged. We were in eye of storm. Brother was to buy house with renovations the week of Katrina but there was a delay of some sort, so now I had a damaged flooded house and had to start over. Well, we worked thru this and Attorney kept wanting to settle the estate before I sold lot. He kept billing me and I wrote him that lot was not sold. To come to the question, the trust attorney filed probate and I kept telling him it was a trust and shouldn't have to go thru probate. Well, he said something was not filled right, but never gave proof. I went to court house and have certified documents that both house and lot were billed in trust name in 2006 and the trust was lsted in court house with book and page number. I have papers and presented to him. He said we still have to do probate because he opened it and that I am in trouble with court because I did not assist him in closing estate. He tried to get released from case because he wrote I did not help him. I didn't go to court because the letter didn't say I had too. it was a trust but he opened probate because he states trust not done properly. Properties sold were listed as trust. He also told me in first meeting after reading trust that I was my dad and could do as my dad would do. When I sold house, he told me to distribute money but keep a little back, I sold lot and distributed those funds also except kept alittle back. Then I made another distribution and closed checking account when amount was only being used for svc. charges. So I closed the cking. account. I thought I was finished. Now I get a letter in Nov, 2015 that I need to show the court an accounting. I contacted Legal Shield and the attorney told me to fax all records from court house to them. I did and he said it just needs to be closed but Judge never ruled on releasing him from case. So after a real panic attack, I called him. He said we are in big trouble because I did not close the estate. I told him again it was a trust. He is the attorney but never gave me proof or advice except probate. He said I signed probate papers he gave me. I told him he was the attorney and I thought he knew what he was doing. I thought it was pour over will. Anyway, he told me to come meet him with all I had and complimented me on my spreadsheet from 2004 to 2013 listing every ck and person. Gave him copies of checking account for the period account was opened. He tells me to meet him to sign papers to close estate. In the document he has listed that I waivered my fees and that he gave me good service. He also had addresses listed from 2004. He said the addresses didn't matter but I gave him new ones. I told him I did pay myself $2,000 and $ 5,000. He said how could I do that. HOw could he assume I wouldn't. I have now spent 11 yrs on this and after giving him court proof that it was a trust, he said it doesn't matter and that I willl have to pay out of my money. I am on fixed income with 78 yr. old husband with dementia. Where do I go. I am under therapist because of panic attack. I know this is long but he said that I am in trouble and better save my pennies. I not only handled my dad's death, repaired house after 2 storms, got cursed by sibling owing money, and taught in a tent after Katrina, and physically and mentally handled everything. What do I do? What does a trustee have to do. He never told me anything but that I was my dad and had his power and to distribute funds after sales. Judy
Submitted: 1 year ago.
Category: Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

I am sorry to learn of this situation and complex series of events.

It appears that this attorney has indeed complicated matters by forcing a trust into probate (sometimes a trust does need to go to probate, but one of the primary reasons for using a trust is to avoid this procedure).

However, if the matter is in probate, it does have to exit probate.

Unfortunately by not going to court, you may have missed critical steps in the probate procedure (whenever there is a hearing on a matter that you are involved in, make sure that you appear - even if you are unsure of what is going on at the hearing, show up - if nothing else, you can ask for a continuance to prepare an argument on the issue and come back to argue it later).

The attorney messed up, and they should be the ones that make it right. They should do so at their expense.

You may have a legal malpractice case against this attorney - but unfortunately, this matter is likely too small to be worth pursuing in general civil court. You can consider hiring a local malpractice attorney for the purpose of writing to the attorney and threatening suit, with the idea that this first attorney (the one that filed probate without needing to) will both close out the probate at his expense, and reimburse you for any money that you have to pay the malpractice lawyer).

Do not rely on your "Legal Shield" account - I understand that a lot of people use this service - I cannot recommend them. (I know we cannot provide specific referrals on this site, but if you want effective legal representation, go to a local attorney). You can find local attorneys using the State and local Bar Association directories, or private directories such as;; or (I personally find to be the most user friendly).

Unfortunately working out the details regarding an argument for why you should be compensated (this should be easily done), and how exactly the probate should be closed out - are things that are going to rely on a specific review of your documents (the trust and the probate action itself), which a local attorney will need to do - but given the scope of your efforts, you should be compensated as your fees appear "reasonable" - and you should be compensated as an "administrator" (whether or not you are identified as the administrator is an issue that is going to be key here - and if you are not, the attorney is going to need to show why not).