We often represent abused beneficiaries who are forced by trustee inaction to petition the probate court to order the trustee to account. The petition must follow the formalities set forth in the probate code.
Once the trustee accounts, the petitioner and their advisers will take a close look at the information provided. If the trustee fails to maintain accurate record, they are presumed to be in violation of their fiduciary duties.
The trustee has the duty to prove every item of their account by satisfactory evidence. Doubts from the failure of the trustee to keep records are resolved against the trustee. The trustee has the duty to support every item of the account.
How do these cases arise? I’ll start with noting that they arise wit[...]
Trust accountings can be routine or the genesis for shocking discoveries of embezzlement and trustee fraud. Embezzlement is the fraudulent appropriation of property belonging to someone else by a person to whom it has been entrusted. The theft of property with a value of more than $950 can be prosecuted by law enforcement agencies as a felony. Civil wrongs stemming from the same acts may be litigated in the civil courts.
Before exploring some recent criminal prosecutions against trustees who embezzled funds and defrauded beneficiaries it will help to have a little background on the law regarding trustee accountings. I am a California lawyer, so my references will be to California law.
The duty of a trustee to account is fundamental to[...]
A trustee who embraces transparency in timely informing beneficiaries of changes in a trust may often bring reconciliation to a family divided by grief and familial stresses. The countervailing movement to transparency is secrecy. Secrecy between trustees and beneficiaries may sow distrust, uncertainty and is fertile ground for imagined wrongs – whether valid or invalid.
So what does California law tell us about a trustee’s duty to report information and account to beneficiaries? California has a specific law that identifies the rules that trustees should follow to support trustee-beneficiary transparency. The law covers a good deal of ground but this discussion is limited to the common event where a settlor passes away, the trust[...]
Our team of attorneys at Hackard Law serves trustees and beneficiaries in trust and probate litigation cases, including accountings, trustee removal and surcharge petitions, elder financial abuse, fraud, concealment and conversion actions in California Probate Courts.
The process of representation is initiated by a preliminary review of our prospective client's case. A part of this review is securing an understanding of the terms of the decedent's trust (including all amendments), identifying the property and cash inflows and outflows from the trust, and scrutinizing end of life inter vivos and testamentary gifts to new friends, suddenly interested family members and/or care custodians.
We are regularly asked to review cases rife with[...]
Most parts of everyday life and business occur informally and without the need for active administrative or judicial enforcement mechanisms. We follow traffic laws and know that if we don’t that we can be cited for speeding or whatever other violations we commit. We fill up our cars and assume that the gas pump counting the gallons purchased is correct. There are so many things that we do without third-party enforcement unless someone messes up.
This is the way trust accounting works. Informal trust accountings without court oversight are an everyday occurrence. A Probate Court Petition to compel a trustee to account goes beyond the everyday informal accountings. It is filed by a beneficiary when a trustee fails to provide the benefici[...]
Hackard Law regularly assists trustees and beneficiaries in disputes where breach of trust and breach of fiduciary duties are alleged against a trustee or co-trustee by a trust beneficiary.
The question that is often asked concerns what statutory remedies for a trustee or co-trustee’s breach of trust apply in California probate courts? The following statute applies whether the case is in Sacramento County Probate Court, El Dorado County Probate Court, Placer County Probate Court, and Alameda County Probate Court or in any of the other 54 counties in California.
Probate Code Section 16420. (a) 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 proce[...]
In estate law, a sense of fair play is crucial to every element of the legal process – from the drafting of wills and trusts to probate and the distribution of funds and assets. Clients, attorneys and financial professionals all depend on trust, along with the implicit assumption that everyone’s operating in good faith. When trust breaks down in an estate case, litigation often ensues, and in extreme circumstances law enforcement is forced to step in. So what happens when millions inexplicably go missing from an estate and beneficiaries are exploited?
The matter of Connecticut attorney Peter Clark serves as a reminder on the need for accountability and fair play in estate law. Clark, 57, made a plea bargain last month with the US Att[...]