A Trustee has a duty to inventory, take possession of, and hold, all Trust assets after the trustor has died. If it is known that certain valuable assets are missing/unaccounted for, and it is suspected through circumstantial evidence that a co-beneficiary along with a 3rd party has knowledge of their whereabouts, or possession by fraud, can the Trustee legally compel this beneficiary and 3rd party to come forth with this information if the beneficiary and 3rd party refuses to do so voluntarily? If so, what legal means can be utilized?
The current Trustee is my adult child and I am the successor Trustee as well as co-beneficiary with my other sibling (who, for reasons I suspect as stated above and were known to our deceased mother, was not named a successor trustee). The trust attorney, although presented with the evidence, seems unwilling to support the Trustee's efforts to locate and procure these assets at a substantial, financial detriment to me.
Although once a petition is filed, general civil discovery mechanisms may be utilized, there is a possible alternative that does not require an initial probate filing. Probate Code §§8870-8873 provide special discovery procedures for use when a person is believed to have wrongfully possessed or concealed the decedent's property, or to have knowledge or possession of a lost will or of certain evidence regarding the decedent's assets. The personal representative or other interested party may petition the court for an order that a citation be issued compelling the person to answer interrogatories or appear before the court for examination under oath, or both. The interrogatories or examination may concern any of the following allegations (Prob C §8870(a)):
The person has wrongfully taken, concealed, or disposed of estate property; or
The person has knowledge or possession of any of the following:
A deed, conveyance, bond, contract, or other writing that contains evidence of or tends to disclose the decedent's right, title, interest, or claim to property;
A claim of the decedent; or
A lost will of the decedent.
Disobedience of the citation may be punished as contempt of court. Prob C §8870(c).
NOTE: Probate Code §859 imposes liability for double damages on a person who wrongfully takes, conceals, or disposes of estate property.
If not the petitioner, the representative must receive notice of these discovery proceedings, as must persons who have filed requests for special notice. Prob C §8870(d). See Prob C §§1220 (notice to representative), 1250 (request for special notice), 1252 (notice to person requesting special notice).
On petition by the representative, the court may also issue a citation to a person who has possession or control of property in the decedent's estate to appear before the court and account under oath for the property and the person's actions with respect to the property. Prob C §8873(a). Disobedience of a citation under §8873 may be punished as contempt of court. Prob C §8873(b).
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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Real Estate Attorney
You need to file a suit against the trustee for an accounting. As part of the suit you can take the deposition of the beneficiary and anyone else with knowledge of the assets.
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You have not identified your position although it sounds like you may be the Trustee. If you are the Trustee you can utilize procedures in the probate court to subpoena records of the 3rd party and the beneficiary as well as take their depositions. In any event you will need to hire a lawyer to assist you. The lawyer can advise you whether you should be seeking some extraordinary procedures (protective orders, etc.) out the outset of the litigation or whether the more leisurely pace of probate law and motion practice is suffcient.
This is a general answer only and you should seek the advice of counsel to address facts specific to your circumstances.
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