The Following is a Transcript of this Video. For More Information, CLICK HERE

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.

THE FOLLOWING IS A TRANSCRIPT OF THIS VIDEO. FOR MORE INFORMATION, CLICK HERE

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.

 

It doesn’t happen often, but the existence of fraud can cause a Will to be invalid. Fraud is simply a lie (called a misstatement of a material fact in legal parlance).  Thus, if someone lies to a person creating a Will (called the testator) and that lie causes a different disposition under the Will than otherwise would have been made, then the Will is invalid for fraud.

Let’s put this legal-talk to an actual example.  A testator had two sons, Adam and Brian; Adam was an alcoholic, but rehabilitated himself and no longer drinks.  The testator had previously disinherited Adam when he was an alcoholic, but then created a new Will giving Adam an equal share once he was rehabilitated. However, the testator warns Adam that “if I ever see you drink again, you’re out of my Will for good!”

A few weeks later, the testator and his other son Brian are walking down the street and they see someone exiting a bar with a drink in his hand that looks like Adam, but the testator isn’t sure if it’s Adam.  He asks Brian if that is his brother exiting the bar, and Brian says “that’s my brother Adam all right” even though Brian can clearly tell that the man exiting the bar is not Adam.  The testator then changes his Will and disinherits his son Adam based on that lie. 

Since the Will in this example was created based on a lie, and the Will was changed in a way that would not have occurred absent the lie, the Will could, and very likely should, be overturned.

The problem, of course, is that these statements made to the testator must be established by credible evidence in court.  And if no one else heard the lying statement by Brian and no one else knew exactly why the testator changed his Will, then there won’t be any evidence to present in court—Brian certainly is not going to admit to the lie in open Court.

So fraud is a ground, albeit a difficult ground, that can be used to overturn a California Will or Trust (this same discussion applies to the creation or amendment to a Will or Trust  too).