hello in am a caretaker of a 73 year old man who has dementia we are recently in the process of having his brother investegated because since his mother passed away about two years ago he has been stealing money from his brother .adult protective services is making a police report within the next couple of days.we belive his mother had a revocational trust and believe his name was on it .but because of his sickness we belive he just simply didnt tell his brother he had anything coming how do i go about finding out if she did have one and if she did rather or not his name was on it
Estate Planning Attorney
As I understand this situation, your elderly client’s brother is being investigated for financial elder abuse committed against your client. It is your understanding that your client’s mother may have had a revocable trust during her lifetime. Such a revocable trust would become irrevocable upon the death of the Testator (the client’s mother). It is also your understanding that the client’s mother passed away and may have left a share of her trust estate to your client. Because trusts are not filed or recorded, and if no Probate action was filed, a copy of the trust would not be a public record. It then becomes more difficult to find out whether the elder’s mother had a trust and whether she provided for your client.
For a variety of reasons, sometime a trust action is filed in Probate. If a Probate action was filed in the county where the mother passed away, then a copy of the trust may have been filed or lodged with the court. In that case, if the document is still in the court’s file, a copy of the document can be obtained by either going to the court clerk’s office in person or by writing to them and requesting a copy. There will be a charge for the copies. The clerk can let you know what that cost will be.
If you have any information that the elder’s mother owned real property, then its possible to search the county recorder’s records for the deed. If the trust was funded properly, the real property would have been transferred into the name of her trustee for her trust. The deed may contain information such as the name of the attorney who prepared the deed, usually listed as “Recording Requested by” in the top left corner of the document.
If you can discover the name of the attorney who prepared the trust, it would be possible to contact the attorney to ask for the information you are requesting here. However, ordinarily if the client is unable to make the request for these documents himself, the attorney may not be willing to provide them to you unless you are authorized to act on his behalf. Does your client have a fiduciary such as a trustee, conservator, or attorney-in-fact who is authorized to act on his behalf? A fiduciary will most likely have the authority to obtain these documents if they can be located.
Also, if you are able to discover the whereabouts of the trust documents or the name of the attorney who prepared them, you can turn this information over to the investigating authorities. These authorities may be able to obtain them on your client’s behalf. If a police report is made and the district attorney proceeds with an action against the brother, these documents may be obtained by subpoena or other discovery method. Subpoenas and other discovery methods can also be used if any civil action brought against the brother.
I hope this helps you. Good luck with this.
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Revocable trusts are not normally filed or recorded. However, there are ways to track down such documents, including county recorder searches, tax records, and other techniques.
In this particular case, you will need an attorney to represent you in the discovery of assets, so he or she can assist in preliminary work such as attempting to discover the existance of a trust. In fact, the trust itself is not as initially important as determining what assets the mother may have held at the time of her death, whether in her own name or in her name as trustee.
I'd suggest hiring a probate/trust attorney in the county in which your client resides. Most will provide you with a brief complementary consultation.
You will need to put on your investigators hat. If she had an attorney contact him or her first to see if they know whether a trust existed. Also, if she had a financial advisor or a CPA talk to them. They often receive copies of the trust, as well as any bankers. Then check title on any property she owned to see if it was named in the trust name.
Don't over look her personal papers and safe deposit boxes. Copies of the trust could be here as well. Look for bills from attorneys, letters, etc. There will usually be some form of evidence if a trust was prepared. Good luck.
Any individual seeking legal advice for their own situation should retain their own legal counsel as this response provides information that is general in nature and not specific to any person's unique situation. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency.