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As a trust beneficiary, do I have the right to know the trustee's fees?

San Francisco, CA |

I was told by the attorney for the trustee/estate that we would know this when the estate has been completely administered. My brother and I feel that, by not knowing, we are writing a blank check every month. And despite a settlement agreement reached in November of 2010, the administering has dragged on. Seems it's to the advantage of both the trustee AND the attorney to continue to be paid, put us on the back burner, while we wait for the final disbursement.

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Attorney answers 4

Best Answer
Posted

As a beneficiary of a trust in California, you are entitled to a number of things under the law, laid out in Probate Code Sections 16061 through 16069. Of importance to you is the requirement that the trustee provide an accounting to you, that provides the following information:

Probate Code Section 16062. (a) Except as otherwise provided in this section and in
Section 16064, the trustee shall account at least annually, at the
termination of the trust, and upon a change of trustee, to each
beneficiary to whom income or principal is required or authorized in
the trustee's discretion to be currently distributed.

Probate Code Section 16063. (a) An account furnished pursuant to Section 16062 shall
contain the following information:
(1) A statement of receipts and disbursements of principal and
income that have occurred during the last complete fiscal year of the
trust or since the last account.
(2) A statement of the assets and liabilities of the trust as of
the end of the last complete fiscal year of the trust or as of the
end of the period covered by the account.
(3) The trustee's compensation for the last complete fiscal year
of the trust or since the last account.
(4) The agents hired by the trustee, their relationship to the
trustee, if any, and their compensation, for the last complete fiscal
year of the trust or since the last account.
(5) A statement that the recipient of the account may petition the
court pursuant to Section 17200 to obtain a court review of the
account and of the acts of the trustee.
(6) A statement that claims against the trustee for breach of
trust may not be made after the expiration of three years from the
date the beneficiary receives an account or report disclosing facts
giving rise to the claim.

Probate Code Secction 16064. The trustee is not required to account to a beneficiary as
described in subdivision (a) of Section 16062, in any of the
following circumstances:
(a) To the extent the trust instrument waives the account, except
that no waiver described in subdivision (e) of Section 16062 shall be
valid or enforceable. Regardless of a waiver of accounting in the
trust instrument, upon a showing that it is reasonably likely that a
material breach of the trust has occurred, the court may compel the
trustee to account.
(b) As to a beneficiary who has waived in writing the right to an
account. A waiver of rights under this subdivision may be withdrawn
in writing at any time as to accounts for transactions occurring
after the date of the written withdrawal. Regardless of a waiver of
accounting by a beneficiary, upon a showing that is reasonably likely
that a material breach of the trust has occurred, the court may
compel the trustee to account.

So, as can be seen from the, you are entitled to at least an annual accounting unless the trust waives the need to provide a copy of the accounting. If it's been since November of 2010, then there should be an accounting from the last year, and that would show attorneys' fees and trustee's fees. If not, you do have the right to demand that an accounting be provided.

DISCLAIMER AND INFORMATION ABOUT ATTORNEY ROBERT P. BERGMAN This answer is provided by estate planning attorney Robert P. Bergman, with offices in San Jose, California. Mr. Bergman is a Certified Specialist in Estate Planning, Trust and Probate Law (State Bar of California Board of Legal Specialization), and has been practicing since 1980. This answer does not create an attorney-client relationship, and is only intended to provide general legal advice within the limits of the question asked. If you wish to create an attorney-client relationship for specific legal advice, it will be necessary to enter into an engagement for legal services. More general legal information about wills, living trusts, and estate planning can be found at Mr. Bergman's main website at www.lawbob.com, or his information website at www.lawbob.net. Mr. Bergman also offers free living trust seminars and wealth preservation seminars at his offices in San Jose. For those unable to attend a live seminar, an online living trust seminar may be viewed or downloaded at www.freelivingtrustseminar.com.

Posted

Unless the trust document explicitly says this, this is generally NOT the rule. As a beneficiary, the default rule is that you are entitled to an accounting, namely, statements of account. You need to ask them to provide you with monthly accounting statements, including all invoices and expenses paid by the trust thus far. The trust language will control, but if they fail to provide these, you can generally go to the court and ask that the trustee provide a formal accounting. Once the accounting is provided, that will set the grounds for your breach of fiduciary duty claims, if any exist. Depending on the value of the trust/estate, it is possible for the trustee and attorney to fritter away trust assets leaving less for the beneficiaries, because those are considered trust expenses paid out of the body of the trust. I think you should have an attorney review the trust document to advise you of your rights. If you would like to discuss whether it makes sense for you to pursue this matter, send me an email and we can discuss further off-line. Best of luck to you, Rabeh

Please note - I am providing you with general comments, not legal advice. Nothing in this answer creates an attorney-client relationship nor constitutes legal advice, as I do not know the facts of your case well enough to be able to guide you, nor am I making any promises about the outcome of your case, or any guarantees about my capabilities, skill level, or predicted success. If you would like to retain me to provide you with legal advice, please contact me and we can discuss the engagement.

Posted

Both attorneys offer sound advice. One additional point would be that the attorney and trustee should have an engagement letter that spells out how the attorney is to be compensated. A second point would be that if the trustee is not acting in the best interests of the beneficiaries then you may be able to have him or her removed for cause. For removal for cause, please see my article entitled Pennsylvania Probate: Removal of Personal Representative Under PA Estates and Fiduciary Code at the following link: http://www.sjfpc.com/Probate_Removal_Executor_T.... Even though this relates to PA law most states have similar rules. Get with an estate attorney of your own to review the situation to see what can be done.

Hope this helps.

Please remember to designate a best answer to your question.

Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is

LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.

Posted

You are absolutely entitled to know what is going on. The only issue that makes answer a little difficult is your statement regarding a settlement agreement. That could effect the rights of the parties.

Assuming the settlement agreement does not create issues, the trustee still has an affirmative obligation to keep you informed of the administration of the trust (which would include how much in attorneys fees and trustees compensation have been paid). In addition, not withstanding anything else, the trustee can be compelled to give you an account. If you request it in writing, if they have 60 days to provide it. If they do not, you can Petition the court.

PRACTICAL matter. The trustee and the trustee's attorney will charge the trust for preparing the account so you have to weigh the cost benefits of the request.

It sounds like you need to retain local counsel (jurisdiction is where the trust is administered), unless there have already been trust proceedings.

The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice

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