When we meet with Sonoma County trust beneficiaries about trustee wrongdoing, our clients often wonder aloud whether we've ever seen anything like the trustee's wrongdoing that they describe. Theirs is a normal reaction to a shocking event that is both inconsistent with their family history and a catalyst for acrimony. We're asked, in so many words, what is the law with regard to the liability of trustees for wrongdoing?
Here are the fundamentals: "A violation by the trustee of any duty that the trustee owes the beneficiary is a breach of trust." (Probate Code, § 16400.)
"If a trustee commits a breach of trust, or threatens to commit a breach of trust, a beneficiary or cotrustee of the trust may commence a proceeding for any of the following purposes that is appropriate:
(1) To compel the trustee to perform the trustee's duties.
(2) To enjoin the trustee from committing a breach of trust.
(3) To compel the trustee to redress a breach of trust by payment of money or otherwise.
(4) To appoint a receiver or temporary trustee to take possession of the trust property and administer the trust.
(5) To remove the trustee.
(6) Subject to Section 18100, to set aside acts of the trustee.
(7) To reduce or deny compensation of the trustee.
(8) Subject to Section 18100, to impose an equitable lien or a constructive trust on trust property.
(9) Subject to Section 18100, to trace trust property that has been wrongfully disposed of and recover the property or its proceeds." (Probate Code, § 16420(a)."
Given the available remedies in Sonoma County probate litigation for a trustee's breach of trust, the fashioning of those remedies may be both interesting and challenging. Remedy selection is an important part of an efficient and effective probate litigation practice. Not every wrong requires a full-fledged estate litigation fight. On the other hand, some wrongs are so egregious that to ignore them is to imperil and virtually ensure the loss of most if not all of a beneficiary's rights to a trust.
Many times that wrongdoing is associated with the abuse of an elder - including such behaviors as isolation, neglect, and even physical battery. Just as well, emotional manipulation and undue influence. In this regard, California law states:
"The elements of a cause of action under the Elder Abuse and Dependent Adults Act, section 15600 et seq. (hereinafter the Elder Abuse Act) are statutory, and reflect the Legislature's intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect. (See Delaney v. Baker (1999) 20 Cal.4th 23, 33, 82 Cal.Rptr.2d 610, 971 P.2d 986 (Delaney).)" (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.)
"Financial abuse" of an elder or dependent adult occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code." (Welfare and Institutions Code, § 15610.30(a).)
"A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult." (Welfare and Institutions Code, § 15610.30(b).)
Our first client interview for a potential estate litigation case - sometimes involving elder abuse - is focused on getting the story right. Let's break it down to the basics: What happened? When did it happen? Where did it happen? Why did it happen? How did it happen?
Assessing the scale of a case is our first step at Hackard Law. Our clients often start with "this is very complicated." We understand. While estate matters can be complicated, our experience in probate law allows us to identify patterns quickly and apply the law to those patterns. Whether you live in Sonoma, Santa Rosa, Rohnert Park, Petaluma, Healdsburg or Sea Ranch, Hackard Law regularly represents clients in Sonoma County estate and trust litigation cases. Contact us today at 916-313-3030 - we're only a short ride from Sacramento to you.