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socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 39048
Experience:  Retired (mostly)
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I hope so. My father passed away in Febr. of 2016 leaving a

Customer Question

I hope so. My father passed away in Febr. of 2016 leaving a will created in 2001 and amended in 2014. My mother has been diagnosed with dementia so a Family Trust was created as part of the amendment. My father owned a Real Estate Business and personally owned the building in which it operated. My brother was a managing broker in the business. (there are just the two of us as siblings) My brother was declared the executor of the will and the Trustee of the trust. My brother was given in the will the Real Estate Business and the building where it is located. In addition, there is a farm for which my brother was given 51% and I was given 49%. I have no idea what is in the Family Trust or its total worth, as I have never been given a list. I want to know if I have a right to that information, as if there is anything left after my mother passes, it will be split between my brother and myself. I have been a very dedicated child and do not feel that the estate was divided equally between my brother and myself. I am not sure what input he may have had in the will amendment. He lives where my parents live and I live an hour and 15 minutes away. I feel that he should have shared the trust information with me long ago and I would like an accounting of what takes place with those items, atleast once a year. Also, I would like to sell my 49% of the farm, as I don't live there and my family is not interested in keeping it. Do I have to sit on it until my brother wants to sell because he has the larger percentage? I just want to know what my rights are? My brother and I have had words over the will and we only speak on matters that regard our mother.
JA: Estate laws vary by state. What state are you in?
Customer: Virginia
JA: What documents or supporting evidence do you have?
Customer: only a copy of the will
JA: Anything else you want the lawyer to know before I connect you?
Customer: Not really.
Submitted: 8 months ago.
Category: Estate Law
Expert:  socrateaser replied 8 months ago.


You have a very common problem, which, regrettably, is not well provided for by the law (in Virgnia, or anywhere else in the USA). The problem is that the trustee of a trust has a legal duty to inform beneficiaries of their rights in the trust and to account for the trust's ongoing financial status. VA Code § 64.2-775.

However, there is no law that requires the trustee to notify persons who are not beneficiaries. Consequently, when a trust becomes irrevocable at the death of the grantor (your father), the trustee could, if he or she is deviously inclined, simply tell one or more beneficiaries nothing -- and, take a chance that the beneficiary doesn't petition the court for an accounting of the trust.

And, that's effectively where you're at in the chain of events. If you are a beneficiary, and your brother won't send you a copy of the trust instrument, then your only recourse is to petition the court for an accounting, based upon your "information and belief" that you are a beneficiary of the trust, and that your brother is concealing this fact in order to misappropriate the trust property.

My approach would be to send your brother a letter, certified mail, return receipt required, ask him for a copy of the trust instrument, and state that if he does not provide a copy to you, that you will be forced to assume that he is attempting to conceal your status as a trust beneficiary, and you will petition the court to force him to disclose the trust instrument to you and the court for review.

In short, this is "hardball," because if you're not a beneficiary, then your relationship with your brother is probably finished. That's not to say that there's anything wrong with advancing your rights. But, where family is concerned, some people need to consider the emotional and financial issues together. I'm merely mentioning this to be thorough.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

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