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California Probate Law - What to do if Trustee has failed his fiduciary Duties ?

Portland, OR |

We cannot afford to spend thousands of dollars for Court. We want to keep things simple. Trustee did not lodge Fathers Will, Trustee is denying existence of a Will.
Trustee has passed on his duties to his brother. That brother has given away trust property.
Now they sold the house and we are very worried.
What can we do to get our case back in front of the Probate Judge.

Attorney Answers 3


  1. If it's a question of California law, you should re-post this in the California section, rather than Oregon. In any case, though, the answer is likely to be the same: you'll need to consult with an attorney in private (a California-licensed attorney, if the matter is occurring there). There are severe limits on the ability of anyone to solve these problems based solely on the very limited information here.

    Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: jay@northwestlawoffice.com | Online: www.northwestlawoffice.com


  2. Totally agree with Mr. Bodzin - you need to be talking to a California Lawyer. In a single consultation that will not cost thousands of dollars you should be able to find out if California has adopted the Uniform Trust Code or something similar that gives people in your situation the right to ask a court to review a trustees actions, the right to ask for an accounting, the right to get vital documents disclosed. With a little guidance you might be able to initiate a proceeding yourself and get some judicial assistance but you also might need to appear in the California Court that has jurisdiction. I assume that the house and property we are discussion is located in California. If it's in Oregon you may have the right to go through the Oregon Courts. I am also not sure how this trust was created and what if any relavance a will has. Understand that if I draft a revocable living trust it becomes irrevocable when the client for whom this was created dies and all the property within the trust continues to be property of the trust. I may have draft a pour-over will to create a transfer of any left out property to the trust - but absent the existence of such left out property the pour-over will would not have any function. It would not change anything for the property already in the trust. I still think there is a right to review any relevant documents and property transfers to make sure the trustee has the authority to do what they are doing. PS call an attorney in California - Avvo posts are not a substitute for legal advice. http://www.portlandlegalservices.com

    The comments by this author to questions posted on Avvo are designed to foster a general understanding of what might be the law governing the area of the legal problem stated and suggest what might be the approach to finding a legal solution. Under no circumstances is this author acting as the attorney for the party who posted the question or as the attorney for subsequent readers to the question or response and no attorney client relationship is being formed. This attorney's comments are not intended to be a substitute for getting legal advice from a licensed attorney. A reader of this author's comments should never act on the information provided in these comments as though these comments were legal advice and should always seek legal advice in a personal consultation with an attorney in their jurisdiction before taking action. The information provided here is not intended to cover every situation with similar facts. Please remember that the law varies between states and other countries and is always changing through actions of the courts and the Legislature.


  3. Under the California Probate Code there are provisions to compel a person to produce a will and there are means to protect and recover trust assets if they have been mismanaged. The first step is to file the appropriate petition in the probate court. The proper court depends on whether you are bringing the action against the trustee for breach of duty, or to lodge the will., Although you can do this on your own, the Probate Code is somewhat complex and the probate court's are very rule oriented so it is recomended that you retain an attorney. Unfortunately, these type of legal proceedings can be extremely expensive. However, you should be able to consult with a California attorney for a few hundred dollars to determine what rights you have, how to exercise those rights, and find out approximately how much it will cost.

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