If a trutee of an irrevocable trust has to be removed because he can't be located, how can a beneficiary surcharge the trustee. Does the court appointed trustee surcharge the trustee? Which attorney surcharges the trustee and when it the surcharge proceeding done. Is it done before the trustee is removed or after he or she is removed. And, does the court appointed replacement trustee bring an action to surcharge the removed trustee.
Is the trustee surcharged before he is removed or after he is removed. And, if he is on the run, how do you know where to file the surcharge against the trustee. And, how do you have a proceeding to surcharge if the trustee doesn't show up and is in hiding.
Wow. There is certainly a lot of surcharge questions, here. The only one that can surcharge a trustee is the court. There is nothing in your summary that provides any basis for a surcharge. Is there an attorney representing the trustee? Has the trust been registered?
What exactly has the trustee done? I suppose the implication is that the trustee "took the money and ran." If that is the case, and if you can find the trustee, then a surcharge action would certainly be appropriate.
Before having the court appoint a successor trustee, does the trust agreement do so? Was the trustee bonded? If so, then you may have another course of action. In that case, the bonding agency would take care of the beneficiaries and then pursue to the trustee.
Any potential surcharge action should be filed in the probate court. Which probate court depends on a number of factors which are not included in your summary.
I would meet with a probate attorney as soon as possible to determine what you must do. The longer you wait, the less chance you have of realizing a positive result.
I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on 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 state. The law changes frequently and varies from state to state.
Your post raises many complex issues. A court appointed trustee? A surchage proceeding is very specific in its causes and recoveries. If the court appointed a new trustee, the trustee would act on behalf of the trust, not individual beneficiaries. I presume you are working with a lawyer. I would suggest that you sit down with your lawyer and discuss this type of proceeding.
Questions, questions, questions. But there can be no real conclusive answers from this forum. You must retain estate litigation counsel to bring an action for surcharge and you need counsel to determine whether this is a justifiable and valid course of action.
If the trust provides for a successor trustee that trustee is the one that will take over and the one that will be the party to bring the surcharge action before the court.
Get an estate litigation attorney involved immediately since this forum cannot give you what you really need.
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 [email protected] , his website for more tax, estate and business articles 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 [email protected] , 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.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline