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Can only an attorney petition for subpoenas in preparation for litigation estate probate? Or can I do this myself?

San Francisco, CA |

The trustee has breached his fiduciary duty by stealing monies, hiding his actions, and not providing a complete itemized list. The original attorney fired him as a client, and passed him onto another lawyer, who has offered me (an heir) a waiver to sign that says I relinquish my inheritance. If I sign this waiver, the trustee will cut me a check for $17. If I do not sign the waiver, I do not receive the $17K. I do not know what my inheritance is, because bank statements are missing, and the itemized list has many blanks, in terms of where large amounts of monies were spent.

Attorney Answers 3


  1. Hire a probate litigation attorney and demand an accounting from the Trustee as it seems they may either have negligently or intentionally wasted the Trust's assets or they are very disorganized and have not kept a proper accounting of the Trust assets? You can make a demand on the Trustee that the Trust pay for your legal expenses in obtaining the accounting and if warranted a removal of the Trustee for breach of his/her fiduciary duties. You can do all this yourself, but it is ill advised, you don't want to ruin your case because you failed to follow the required probate laws or you get out-lawyered by the other side! if there are other beneficiaries, you can join together and share the expenses of a lawyer.

    Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.


  2. Only the clerk of the court, a judge, or an attorney of record may issue a subpoena.

    DISCLAIMER — No legal representation is being sought by the response to this question. Please note that this answer is for informational purposes only and does not constitute legal advice. An attorney should be consulted for more in depth legal advice as more facts and information are necessary. No attorney-client relationship is hereby intended. However, if you have additional questions concerning this matter you may reach Dominique N. Thieu, Esq., by: phone 714.435.9500 or e-mail me dnt@thieulaw.com, THIEU VIRTUAL LAW GROUP, 17280 Newhope Street, Suite 20, Fountain Valley, CA 92708.


  3. You can not subpoena records unless it is part of a pending suit in which you are a party.

    However, the facts here are not clear. You mention a trustee but also mention a probate estate. If the person is acting as a Trustee, it will be under a living Trust, which is not in Probate Court. One way or the other, it seems you are guaranteed at least the 17K, so it's worth it for you to retain an attorney to take the proper action.

    This comment does not create an attorney-client relationship. The law and its application by the courts is constantly evolving and changing. This discussion is not to be taken as a definitive guide, and should not be relied upon to determine all fact situations. Each set of facts must be examined separately with the current case and statutory law analyzed and applied accordingly.

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