Legal Question in Wills and Trusts in California
Objection to Accounting
I recently received an accounting from my brother, who is trustee of my father's estate which was to be split equally between my brother and myself. According the this accounting, my brother's attorney received more money than I have and at least $300,000 is unaccounted for or listed as ''lost investment''. My brother has not spoken to me since my father's death 1 1/2 yrs. ago, and I fear there is misappropriate handling of the estate funds/assets. Do I need to file an objection to this accounting? Who do I file the objection with? The estate is in a family trust not in probate, is it too late to file a petition for probate?
My present attorneys are not and have not looked out for my best interest. In fact, my attorney told me to find another attorney to sue my brother for breach of fiduciary duties once I received this accounting. Please advise.
Thank you.
2 Answers from Attorneys
Re: Objection to Accounting
You should file objections to the accounting in probate court, but first make sure any actions you take do not violate any "no contest" provisions in the trust. The law generally allows you to object to accounts, but other actions like unsuccessful trustee removal petitions can trigger some "no contest" clauses.
Re: Objection to Accounting
You should send a written objection to the accounting to the trustee directly. You should also request any additional information or documents needed to have the trust audited by your cpa.
Although it may be possible to open a probate at this time, if your brother (and/or his attorney) have misappropiated trust assets the best course is to petition (the probate court) for his removal as trustee, for a formal accounting and possibly also for breach of fiduciary duty.
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=17001-18000&file=17200-17211
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=15001-16000&file=15640-15645
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=16001-17000&file=16420-16421
As it appears that a substantial part of the estate has already been lost (by fraud or perhaps by investing imprudently), you should take any action as soon as possible.
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