Trustees & Beneficiaries

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Hi, this is Keith Davidson at Albertson & Davidson.  In this video, we’re discussing trustee surcharge.  How do you hold your trustee liable for the damages that they have caused to your trust estate?

The number one way that you hold a trustee liable is you have to go to court on a petition asking the court to order the trustee to pay damages back to the trust.  That’s what we call a surcharge.  And you’re allowed to ask for a surcharge for any harms and losses that the trustee has caused to your trust estate.

You usually start by filing a petition with the court asking the court to order a surcharge against the trustee.  But you have to know what it is want to surcharge.  So if you know that the trustee has caused damage by taking a specific act, and you know how much the damage the trustee has caused, then you can go straight forward, file your petition and ask the court to order the trustee to pay that back.

If, however, you’re unclear as to the damage that the trustee did, then you’re going to have to do a little bit more than that.  And that comes in a couple of different way.  One way is you could file a petition asking the court to order the trustee to account.  So then the trustee has to do a formal trust accounting.  And that essentially will become your roadmap for whatever the trustee surcharges will be.  Because in that accounting, you should be able to see where the problems arose.

Also, using that accounting, you can start doing discovery, issuing subpoenas, getting bank records, getting financial statements, getting records from escrow companies.  And you can start piecing together the information yourself and finding out where the damage occurred to your trust.  Once you have that information, then you can ask the court to order the surcharge.

So it really depends on what information you have heading into the case.  The more information you have, the more likely you are to go straight into the petition asking for a surcharge.  The less information you have, you’re going to have to take the first step of becoming informed and then you can sue the trustee for surcharge.

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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, I’m talking about can you release your trustee from liability and, in particular, can a trustee force you to sign a release in order to get your trust distribution?  And you see this happen fairly often or more often than it really should.  Which is a trustee will say, “I have your money.  I’m ready to distribute it out to you, but I won’t give you a dime until you first sign this release relieving me, the trustee, of all liability under California Probate law and Trust law.”  And the answer is no.  A trustee cannot force you to sign a release as a condition to getting a distribution of your trust share.

Now, that doesn’t mean that a trustee can’t still ask you to sign a release.  You voluntarily can choose to sign a release if you’d like to.  And there are some reasons why you might want to do that.  Because if you don’t sign a release, the trustee might choose, instead, to seek court approval of a trust accounting.  And the reason why a trustee would want to do that, is if they disclose all of their activities in a trust accounting and they file it with the court, and the court approves that accounting, then all of those acts cannot be sued on later.  So, once the trust accounting is approved, the beneficiaries can’t come back later and sue the trustee for those acts.  And for that reason, the trustee may say, “Well, I either need you to sign this release voluntarily, or I’m going to have to file an accounting with the court.  And I’m allowed to use trust funds to pay for that preparation of that accounting.”

So you’re in the unusual position where the trustee cannot withhold your money, pending you signing a release.  But the trustee can spend some of your money to get a trust accounting prepared and filed with the court and seek court approval of that accounting.

That doesn’t mean that the trustee can withhold all of your money, however, because even preparation of a trust accounting, it only costs so much.  So it might cost five, ten, fifteen thousand dollars to hire an accountant to do a trust accounting.  You might have to pay a lawyer similar amounts, but it’s not going to be your entire trust share, in most cases.  So if you’re entitled to a million dollars, the trustee can’t withhold a million dollars because they want to get court approval of an accounting.  They have to give you a distribution.  They can hold a reserve, let’s say a hundred thousand dollars out of your million, but they can’t keep the whole million dollars hostage until the court approves their accounting or until you sign a release. And, unfortunately, this happens quite often.  Trustees will threaten that they will withhold your money unless you sign a release, and unfortunately, a lot of times people feel compelled to sign those documents.

And our advice would be don’t sign the documents.  Get some advice before you take any action.  And hopefully, the trustee will do the right thing, will follow California Trust law, and will give you your trust distribution.

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about how we find assets in a trust or will contest case.  And this is a problem.  This is something that we have a hard time explaining to clients, at times, because the clients come to us and they say I know Mom and Dad had gold bars, silver bars, cash in a safe.  I know that there’s some personal property items that are out there that Mom had and my brother’s taken them and sold them to a pawn shop.  How do we prove that?  How do we get the assets back?

And there’s some good news and bad news here.  But, the good news is, if an asset has a title to it, such as a bank account, that has a title.  A car has a title.  A house generally has a title.  Retirement accounts have titles.  These are generally larger assets in a person’s estate.  We can generally find those assets out there by serving subpoenas on parties that have those documents so that we can look at them and determine what the value of those assets were on the date of death, maybe even prior to the date of death, and then, of course, what they’re worth today.  And we can ask whoever was in control of those assets after someone passed away, what have they done with those assets?  Have they spent them on themselves?  Or have they saved them for the rightful beneficiaries of the trust or the will?

So that is one way that we find assets in these cases.  Sometimes I feel like clients look at us and say, you’re the lawyer, you’re the expert.  Can’t you just go out there and find these assets?  Aren’t these assets just available for you as a specialist in this arena, to go and find.  And what I tell clients is, I wish that were the case.  I wish I had a magic wand that I could waive and I could find all of the assets that had disappeared or gone missing that once belonged to your Mom or your Dad prior to their passing.

There’s going to be some assets that you’re just not going to be able to find in these cases.  Rarely will you find someone whose stolen assets.  Rarely will you have them come to a deposition and they admit that they’ve stole assets.  Even if they get to the point where they say yes, there were some cash in a safe of $200,000.  They’re going to tell you that Mom or Dad gifted that cash to them.  And then that will be the new argument, whether it was a gift, whether it was a loan, whether they took it without permission.  That will be an issue to decide at the time of trial.  But, in most cases, if $200,000 cash is missing, changes are finding it are not going to be great in these cases.  I wish that was not the state of affairs for trust and will cases in California, but, ultimately, if we have titled assets, we can find them.  If we have untitled assets, it can be a problem and the sooner people understand that, come to grips with that, it’s much easier for us to move forward in the case.

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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, we’re talking about trust accountings.  And we just finished a video where we talked about when you are entitled to a trust accounting and it depends on the type of beneficiary you are.  But there’s two instances where you may not be entitled to a trust accounting, no matter what type of beneficiary you are.  And the first instance is if the trust waives an accounting.

This is where you have to read through your trust document to find out if the trust document waives the trustee’s obligation to account.  Normally a trustee has an obligation to account during certain periods, like once a year, or any time there’s a change of trustee.  But if the trust document waives that accounting right or obligation, then you’re not going to be entitled to an accounting.

You can still get one, however.  If you go to court and you can show that there’s a high degree of likelihood that the trustee has breached their duties of trust, then the court can still order an accounting, even though the trust document waives it.  But the trustee doesn’t have to automatically give you an accounting.  So look at your trust document and see if it waives an accounting.

The other instance is if you, as a beneficiary, waived the right to an accounting.  You may voluntarily sign a document waiving your right to an accounting and, in that instance, the trustee does not have to account to you any longer.  You can revoke that waiver and you can do the revocation of the waiver of accounting at any time.  However, once you revoke a waiver of accounting, the trustee only has to account for actions after you did the revocation of the waiver.  They don’t have to go all the way back.

But you’re still entitled to information.  So even if you can’t get an accounting, at a minimum, you should be asking for information about your trust.  You should see the bank statements, the brokerage account statements.  If real property is sold, you should see the closing statement.  You have a right to be reasonably informed about the business of your trust and you should ask for that information in writing.  You don’t have to do anything fancy.  Just send off a letter, an email, or a fax, asking the trustee to give you the documents so you can double check that everything is running smoothly.

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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, I want to talk about whether or not you, as a trust beneficiary, are entitled to an accounting.  And the answer is maybe – which is a typical lawyer answer.  But let’s go through who is and who is not, necessarily, entitled to a trust accounting.

For starters, all current beneficiaries, income and principal beneficiaries, are entitled to an accounting of the trust assets – unless, the trust actually waives that right.  But if you are a current income or principal beneficiary of a trust, you are entitled to an accounting.  If you’re a remainder beneficiary, meaning that your rights aren’t vested yet, but they’ll come into place a current beneficiary passes away.  Then you may be entitled to an accounting.  But you’re not entitled to an accounting as a matter of right.  It’ll be up to the discretion of the California Probate Court.

What you are entitled to as a remainder beneficiary is information.  So you should be able to get and you are entitled to receive any information about the trust assets, the trust administration, and anything else that deals with the business of the trust.  Now that’s different from an accounting.  An accounting is a formal document that sets out charges and credits in a very systematic way, as required by the Probate Code.  But, information can be just as good if not better.

So for example, if you receive a copy of all the bank statements or all the financial account statements, that might be just as good as an accounting because you can look at those and you can see what’s been happening with the finances of the trust.  So, just because you’re not entitled to an accounting doesn’t mean that you’re left out in the dark.  You might still be entitled to information.

There’s a big caveat here.  Everything I just talked about is for irrevocable trusts.  Those are trusts that can’t be amended or changed.  If the trust is revocable, then the trustee only owes a duty to the person who has the power to revoke it, which typically is the person who created it.  If Mom and Dad create a revocable trust and they named themselves as trustee, they don’t have an obligation to give you information while they’re alive.  But, once they pass, and the trust becomes irrevocable, which is usually what happens, now your rights come into existence and you have a right to either an accounting or information, depending on the type of beneficiary you are.

 

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Hi, this is Keith Davidson at Albertson & Davidson.  In this video, I want to discuss whether the successor trustee of a trust has an obligation to declare the trust settlor incompetent.

Let me explain some of those terms before we get started. The settlor is the person who creates the trust. Typically, when people create these revocable living trusts, they’re the settlor, the creator, and the are also the trustee during their lifetime, so they manage those trust assets.  Somebody is usually named the successor trustee for when the original trustee either loses capacity or dies.

The question is: if you are named as a successor trustee, and you’re seeing the trust settlor is fading and losing capacity, is there an obligation to step in and take action?  This usually happens within families. For example: your father creates a trust, he’s the trustee, and you’re one of three children and named as the successor trustee. You can see that Dad is fading, and starting to lose capacity, and that he is having a hard time managing the finances.  Do you, as a successor trustee, have an obligation to step in and take action?

The interesting thing is that from a legal perspective, you don’t have any legal obligation to step in. A successor trustee doesn’t have any duties, responsibilities, or obligations until they agree to act as trustee.

But, then there’s the moral obligation.  You know that if the trustee can’t manage finances, he going to cause harm to himself because his finances won’t be properly managed, and he’s also going to cause harm to the other trust beneficiaries receiving these assets after he passes away.  And from that perspective, maybe you do have a moral obligation to step in.

The good news: that most trusts usually have a section that tells you what you need to do to have the settlor deemed incompetent. Once you do those things, the settlor is no longer trustee and the successor can step in and start acting.

Many trust documents say you need a letter or declaration from at least one or two treating physicians.  And that’s all you need.  Once you have that letter from the doctor deeming the settlor incompetent, the successor trustee can step into place.  It’s just that simple.  You don’t have to go to court to get an incapacity declaration or a conservatorship. Just follow the steps in the trust.

If your trust doesn’t have instructions on how to have the trustee declared incapacitated, then you do have to go to court.  This is harder and can be a problem.  However, I estimate 90% of trusts have instructions on how to handle the settlor’s incapacity.

So, take a look at your trust. See what it says, and follow those steps. Then, the successor trustee can step in, control and properly manage the assets, and make sure that the trust is stable moving forward.

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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about undue influence cases.  What makes a good undue influence case and what makes a not-so-good undue influence case?  And let me just set this out as we meet with lots of people that come into our office saying, “Hey, I want to contest my mom or dad’s trust or their will because I know that my brother Bob exercised undue influence over my parents and I’ve been written out of the will or the trust and I will receive no inheritance and I’ve got the best evidence you’ve ever seen Mr. Albertson, or Mr. Davidson, and we’re going to come in here and we’re just, this is going to be a slam-dunk.  You’re going to have no problem winning this case!”

The type of evidence you need to have a good undue influence case, it’s a high bar.  The burden of proof that’s required for you is high.  It’s not easy to invalidate a trust or a will.  So that begs the question, “OK, well then what makes a good undue influence cases versus a not-so-good undue influence case?”

Well, let’s talk about some of the elements that you need to meet to prove that undue influence did, in fact, take place.  One of the first things we have to show is we have to show that the decedent, your parent in this case, was a vulnerable individual.  We can show that several ways.  The most easy way to show that is that they’re over the age of 65 or they’re a dependent adult.  So if they’re over 65, chances are, you could show that they have some vulnerable to them.  The State of California has addressed financial elder abuse and said, “Look, we see a lot of financial elder abuse happening in our state, so we want to stop that.  And so what we’ve done is we’ve set out some criteria for people to look at.  This, these are the elements that we look to to prove an undue influence claim.”

The other way you can look to see if a person is vulnerable is what if they have some type of a medical issue?  What if they have some diagnosis for dementia or Alzheimer’s or anything of the like that affects their mental cognition?  That is something that also will support the element of the decedent being vulnerable.

We also want to look to other elements.  What about the actions or the tactics of the wrongdoer?  The wrongdoer is the person that exercised undue influence over the decedent.  And a lot of times this is not something that you see that’s nefarious or evil or somebody yelling or screaming at the decedent, it’s actually done in a very nice manner.  And it happens like this:  The wrongdoer comes to the decedent while they’re still living and says, “How come your son, Johnny, doesn’t come visit you anymore?  Oh, you know, I don’t think Johnny cares about you.  It’s too bad that Johnny’s not here to take care of you like I’m taking care of you.”  And it’s just done over time.  And, of course, this person already – the decedent already is vulnerable, because they’re older, over 65 or older, they may have a health issue, and so now you have this person who is doing deceitful actions and tactics to influence the elder that their son Johnny really doesn’t care about them and we see this element time and again in a good undue influence case.

We also want to look to another element and that is what type of authority did the wrongdoer have over the decedent?  And authority can come in many forms.  Authority can be that this is the person’s agent, under their durable power of attorney, or maybe they’re already the trustee of the trust.  They can also be somebody that the decedent relies on for their necessaries of live, such as daily medication.  Somebody to drive them to doctor’s offices.  Somebody to help change their diaper in bed.  Somebody that makes sure that hospice is taking care of them.  Here we see the decedent, the elder, is being very reliable on this person who has this apparent authority over them.

The last element that you want to flush out in a good undue influence case is there is an inequitable result.  This is most easily shown in cases where the decedent had a preexisting estate plan that gave everything equally to all of their children.  And we see this time and again.  And then just before they die, they make a change to that trust that did give everything equally to all their children, and they give everything to one person, either one of their children or the wrongdoer who has come into their life and has now exercised undue influence over them.

So in order to have a good undue influence case, where you can meet the burden of proof which is a high bar in the State of California, you’re going to have to show that the victim was vulnerable, that the wrongdoer used actions or tactics that were deceitful, that the wrongdoer had apparent authority over the decedent, and the results that the wrongdoer got was inequitable.  If you can pull all of those elements together through a totality of the circumstances and showing the evidence, you probably have a good undue influence case.

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Hi, this is Keith Davidson with Albertson & Davidson. In this video, I want to talk about some of the warning signs that you should be aware of to clue you in that undue influence might be taking place with one of your parents.

As lawyers, when we get undue influence cases we typically get them after everything’s been done and we’re looking at the facts in hindsight. But, as a child, there’s times when things happen, and you might be suspicious of what’s happening, but you’re not sure if it’s something bad or not. That’s what I want to talk about. These are the warning signs that really should be on your radar and start raising red flags when you see them.

For example, let’s say you have a parent, and you can tell that they’re kind of slowing down, and you notice that somebody (like a neighbor, a caregiver, or a stranger who you don’t even know), starts spending a lot of time with that parent at their house, and then they start helping the parent write checks or go to medical appointments. That could be a real red flag of somebody who’s trying to cozy into the parent and slowly take control.

Typically, the way undue influence works is: somebody starts off by being just a friend, and then a helper, and then they start taking over everything; check-writing, finances, medications, doctor visits, even communications. That’s another warning sign.

Let’s say that you are finding it difficult to talk to your parent. You try calling them and somebody else answers the phone and won’t let you speak. Or, when you talk to your parent, there’s somebody else who’s always on the other line, listening in. That’s a huge red flag that somebody is probably trying to control the flow of information to the parent. That could be a real problem. So that’s another big warning sign.

One of the elements of undue influence is that somebody controls the necessities of life; food, medication, all those sorts of things. So if you see somebody who you aren’t that familiar with, and they’re doing all the grocery shopping for your parent they’re making meals for the parent they might be doing something that’s really nice and maybe there’s nothing wrong with that, or they might be doing something where they’re controlling the flow of food to the parent which is one way to manipulate somebody who is old and not able to resist undue influence. But, that doesn’t mean that every time you see one of these things that it’s bad, but it definitely should raise your attention and you should look into it.

So those are some of the warning signs that you should be on the lookout for in possible undue influence against one of your loved ones.

 

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This is Stewart Albertson with Albertson and Davidson, and I want to talk to you about an issue that we do see from time to time called advances on inheritance. Advances on inheritance are essentially a loan that mom or dad makes to one child. They don’t want to be unfair in giving that loan to one of their children when they have several other children. So they basically tell the person they made the loan to, well that is an advance on your inheritance so that when I die, you’re going to have to take that into account based upon whatever your share of my estate is.

There’s a real problem with advances on inheritance though because the probate code has some technical requirements that must be met to qualify as an advance on inheritance. Otherwise, that payment of money from a parent to a child will be looked at as a gift.  If it’s a gift that makes a big difference because when the estate is distributed after mom and dad have passed away it’ll be distributed equally between all of the children without taking into account the “loan” that was made to one of the children during lifetime.

So how can you tell the difference between an advance on inheritance and a gift? The advance on inheritance can be proven in three primary ways. There’s actually a fourth way, but that gets a little complicated. If you really want to look into this, you can go to Probate Code section 21135, and you can read how you establish an advance on inheritance there.

Generally, the way you prove an advance on inheritance is:

  1. The trust or will terms themselves have in there saying, I’m giving $100,000 loan to my son Johnny, and when I die, this counts as part of his inheritance at the time he receives his ultimate distribution. That’s the first way that an advance on inheritance can be included and be supported by the evidence.
  2. The next way you can establish an advance on inheritance is did your mom or dad have a writing outside the trust or will that simply says: I hereby am making a loan to Johnny and after I die, that should be considered as part of his inheritance for distribution purposes. That would be the second way that you can establish an advance on inheritance.
  3. The third way is you have Johnny acknowledged in a writing that he’s already receiving some of his inheritance by way of a loan prior to mom and dad passing.

If you have any of those three, chances are you can establish an advance on inheritance.

As you can see, this is not always easy to do. If there is money that is given to one child, a lot of money, say several hundreds of thousands of dollars to one child and not to the other, and there’s nothing to establish an advance on inheritance, what is the argument the child makes who received the money during the parents’ lifetime? And that is, it was a gift. If it’s a gift, it won’t be chargeable against their share of the estate. It won’t be an advance on inheritance.

 

Would you

There are times when a Trust settlor names a successor Trustee who is not a beneficiary of the Trust. This is often a great idea because naming a child as Trustee can be disastrous. And naming two or more children as Co-Trustees is a fantastic idea if you want to keep lawyers fully employed (and who doesn’t want that???).

The problem, however, is when the non-beneficiary Trustee is challenged by a Trust beneficiary. For instance, if a warring beneficiary is determined to exert control over the Trust, he or she may challenge the appointment of the successor Trustee when the time comes for that Trustee to act. What incentive does a third-party have to fight to be Trustee when there’s nothing in it for them?

Fighting to block a named successor Trustee from acting is not an easy thing to do depending on the Trust terms. Most Trust terms do not allow a beneficiary to remove and appoint a new Trustee. That means a Trustee has a right to act provided there are no “skeletons” in the Trustee’s closet. What type of skeletons would block the appointment of a Trustee?

Probate Code section 15642 provides the grounds for Trustee removal, which can be used at times to block a named successor Trustee from acting in the first instance. The grounds include things like insolvency of the Trustee, unfit to act (whatever “unfit” means), where the Trustee committed a breach of trust, where the person cannot resist fraud or undue influence, and the like.

The problem arises where a named successor Trustee has not yet taken control of the Trust assets, but is challenged by a beneficiary from acting. The named successor may not be able to access and use Trust funds to fight the beneficiary over appointment as Trustee. And a non-beneficiary Trustee has no financial stake in the outcome of his or her appointment. In other words, the named Trustee is put in the unusual position of paying out of her own pocket for the right to take on a thankless job with an unruly beneficiary to deal with.

So why would anyone take on such a fight? It comes down to principal. Sometimes standing up for what the Settlor wanted is more important than the personal sacrifices incurred in such a fight.

The better approach for all concerned is to have an easy way out—a safety valve that will allow someone to step in and cure the problem without excessive fighting. And that brings us to the unique, and rarely used, idea of a “special” Trustee or a Trust protector. For our discussion here, both terms can do the same function; namely exercise the power to remove and appoint Trustees.

If a beneficiary insists on fighting against a named successor, then give the power to remove and appoint to a neutral third-party (called a Trust protector or special Trustee) who can choose an alternate Trustee. This approach satisfies the beneficiary by preventing the named Trustee from acting, but it also prevents the beneficiary from effectively controlling the Trust by appointing a pliable lackey as Trustee. Instead, the Trust protector can independently choose a competent person to act as Trustee who is NOT beholden to the beneficiary for his or her job.

Just another example of how well laid plans can help avoid disaster.