Trusts Legal Questions

If the 401(k) named you as a beneficiary, you do not need the executor.  Call the company that administers the 401(k) and indicate that you are the beneficiary of the estate.  If you are named as a direct beneficiary, they will send you clalim forms and you can claim it directly.  If your brother is not doing his job as the executor, you can ask him to resign, and if he refuses, you can have him removed.  ... Read More

First, on your second issue: When two trustees are named, normally the survivor is able to administer the trust alone when one dies. Your claim would be a claim of undue influence. California Code of Civil Procedure Section 337 gives a statute of limitations of four years for an action upon any contract, obligation, or liability founded upon an instrument in writing. A trust modification would fall within this.  You describe yourself as "the person the trust was written for." The person the trust was written for was the deceased sibling. Up to the moment of his death, he had full ability and power to change the trust in any way he chose.... Read More

The old trustee shouldn't continue to operate as trustee. But the bank needs to be immediatley notified that he has been removed. Hopefully there's a branch of the NY bank in California. If so, go into that bank with the documentation about the trustee's removal and your appointment. They should then put your name on the account instead of the prior trustee. After that, you can move the funds where you want.... Read More

There are two issues, choice of law and choice of forum.  The choice of law stays with the trust language, which is NM.  The forum is here.  If the trust was done right, you do not need court intervention, and you should be able to use the document to do what you need to do.  See what the banks, etc., require for you to act on the accounts.  If you run into problems, then you may need to bring a court proceeding here in NY.... Read More

Your husband could have another attorney look at the trust, but it would probably be at his expense. Normally, the fees to assist with trust administration are lower than 2.7%. It's not that much less than what he would have made for doing a full probate, which is much more time-consuming. The trustees are not bound by that fee unless they signed a written engagement letter.... Read More

Most trusts do not forbid margin accounts or short selling; some even explicitly allow them. But trustees are obligated to behave as prudent investors. Unless that trustee had significant training and experience in that kind of high-risk investing, he was not behaving as a prudent investor. You can file a court action removing him as trustee and surcharging him for the losses. As with any court action, there is no guarantee of success. Unfortunately, almost all trusts permit one trustee to act unilaterally.This sort of thing is an example of why there should be only one trustee. The first-named trustee should be the most honest and dependable person, not the one "with experience investing."... Read More

Unless your cousin was historically very close to your father, this sounds like classic elder abuse. You need to go to court NOW and get an emergency temporary conservatorship and an elder abuse restraining order. If your father has capacity, he can change his documents back. If not, you will need to go to court again after he passes to have the trust amendments declared void.... Read More

Your case sounds strong. It may be a serious problem that you have waited six months to pursue this. He may well have expended your entire inheritance defending his own personal cases.  Trust litigation, even when there are strong grounds and witnesses available and willing to testify, costs tens of thousands of dollars, up into hundreds of thousands of dollars. The trustee is legally allowed to spend trust resources defending the trust and his position as trustee.  Do you know how much was in the estate when your mother died? Also, where in California are you located?... Read More

The trustee has a fiduciary duty to act in the best interests of the beneficiaries.  The trustee has a duty to render an accounting within sixty days of a written request.  The beneficiaries can sue the trustee for breach of fiduciary duty and ask the court to surcharge (make him pay back the money) the trustee.  Consult with an attorney for a full consultation.... Read More

Please accept my condolences on the loss of your mother. As for your question: if your mother had her principal residence in Georgia, then the county where she had that residence is the county where you must offer her Will for probate, if it shows up, or where you must open her estate for administration if no Will can be found. You cannot do a Texas probate if she didn't live there. The fact that she was visiting you there does not matter. Now, if you believe that she had changed her principal residence to Texas or another state other than Georgia, then the fact that she owns the house here does not mean you have to do the probate here. In short, a critical question is where your mother had her principal residence and whether she had changed it before her death. An experienced probate attorney should be able to help you answer that question, but you look at things like where she filed her tax returns, where her driver's license was issued, where she voted, where she had most of her doctors and other service providers, etc. However, if you find an experienced probate attorney here, that attorney should be able to work with you to get the estate opened and you appointed as Executor or Administrator with very little need for you to actually travel to Georgia. I, personally, have worked with a number of different out-of-state clients on Georgia probate matters. It's not usually that big an issue. So, find an attorney who works in the county where your mother had her principal residence, schedule a consultation (by phone if needed), and get the attorney to help you figure out the next steps. Best wishes to you.... Read More

There have not been any changes to the inheritance laws in Georgia for a very long time, so I am not sure if your father was a resident of Georgia or some other state. I am licensed in Georgia, and this answer will only be correct if your father had his principal residence in Georgia at the time of his death. If you were adopted legally by your father, you are treated the same as any biological child he may have had: in other words, once he adopted you, you became his child for all purposes. If your father was married and had no Will, then his spouse and children would divide the remaining probate estate assets (after all debts, taxes, and expenses are paid from the assets). The spouse and children each get an equal share, if there are only 1 or 2 children. If there are more than 2 children, the spouse gets 1/3, and each child gets an equal share of the other 2/3. If a child died before your father, that child's children get that child's share. If your father had a bank account in his name and there are no joint owners or payable on death beneficiaries listed, then his estate will likely need to be opened and an Executor (if he had a Will) or Administrator (if he didn't have a Will) appointed. The Executor or Administrator will then be able to access the bank account, along with any other assets your father owned in his own name that do not have beneficiary designations on them. As for something like a 401(k) account, those have a beneficiary designation, either one your father created intentionally or a default provision, if he didn't create one. You have to contact the plan administrator and find out what the beneficiary designation says. The beneficiary designation will control those assets, and they will not become part of your father's probate estate unless the beneficiary is his estate. Ideally, get a good probate attorney. You need to figure out the exact situation to know your rights and options. That's not what this forum allows. Best wishes to you.... Read More

You cannot just file an executor's deed.  An executor is an appointed position by the court.  If you are the sole next of kin, you can do a deed to yourselves, but that is not the best approach as when you sell or refinance, the title company for the buyer will have issues with this manner of conveyance, even if legally correct.  It is a simple administration.  Just do it.... Read More