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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

Posted

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

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Posted

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.

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4 comments

Asker

Posted

Thank you for your response. California does have a Uniform Trust Code. I also wanted to mention that although my brother is refusing to lodge our fathers will and denies its existence. I have a copy of the Will and Trust. Thats why I don't understand his behavior regarding the will.

Joanne Reisman

Joanne Reisman

Posted

Every state has statutes that cover dealing with trust issues. THe UTC was just an effort to bring the various state laws into some uniform set of rules. As stated before, call a California Lawyer. An Oregon Lawyer can help you work through this but then you will end up with two lawyers - one here and one in California and it's just cheaper to start with a California Lawyer.

Joanne Reisman

Joanne Reisman

Posted

I found this on line: As of June 2009, 21 states and the District of Columbia have adopted the UTC, one state has adopted and then repealed it, and many of the remaining states are studying it for future introduction. The UTC is the first major attempt to collect, unify, and codify the law of trusts. It borrows from the comprehensive trust statutes of Georgia, Indiana, Texas, and Washington, and was patterned initially after the trust laws of California.

Joanne Reisman

Joanne Reisman

Posted

So California most definitely has laws governing trusts. You an probably find places to read it if you search on line but you are going to need the help of an attorney to figure out how to use it in your situation.

Posted

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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Asker

Posted

Mark, thank you for your response. I have done allot of research trying to figure out the best way to handle this situation. In reading I have come to the same conclusion you stated, that I need to file a petition. I just know which petition to file. Should it be against my brother or about not lodging our fathers will as you stated. I have spoken to a few attorneys. However, I haven't been able to get the information I've needed to get this back in court.

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