QUESTION

What can be done on an unfunded trust account?

Asked on Aug 24th, 2013 on Estate Planning - North Carolina
More details to this question:
My father died in 2009 with a will that set up a trust account of his residual estate for me and my two brothers in the approximate amount of $250,000. My stepmother passes away in January of 2012 and never funded the trust account. All of her estate was left to her brother because she died interstate. My step uncle has now died and left each of my brothers, $20,000. They have filed to close my father's estate. Both of my brothers have signed off. I filed an objection with the probate court. The judge and my step mother were very close friends. The judge told me I could not file an objection and that pro se was not allowed in her court. She then said she would accept the filing of my objection and the fee was $59.00 which I paid on August 10. I have received a package from the court stating that my father's estate will be closed on September 3, 2013 and that no objections have been filed. What can I do to get her to recues herself? I called the state bar association to file a grievance that my stepmother, her attorney, and the judge acted together to hide the trust account. I am a 100% disabled and cannot afford an attorney.
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1 ANSWER

If its an unfunded trust then its not a valid trust. So let's back up here. Your father died in 2009 with a will that created a testamentary trust. If that is the case, what was to fund the testamentary trust? Money? Land? What did your father own at the time of his death and how was it titled, if it was land or vehicles or bank accounts? Who was the trustee of this trust? If your father had little or no probate assets or a means by which the testamentary trust could be funded, then this language is meaningless. Your stepmother would receive whatever assets she received following the death of your father and she could do what she wanted with those assets. You have no right to inherit from her and filing objections in her estate would not be proper. When someone dies without a will, it is called "intestate" (Latin for no will). In such case, your stepmother's assets would pass under the intestacy laws. I assume that her estate is in NC. If she had no surviving spouse and no children or lineal descendants, then under the intestacy law, her assets would pass to her siblings. If she only was survived by a brother then he would get everything. If he wanted to leave you something that was his choice, but he would need to make a will to do that. It does not matter that the judge was acquainted with your step-mother. That does not necessarily preclude the judge from administering the estate. You are fighting a very difficult battle and it is one which you are going to lose unless you get legal counsel. Judge's do not like pro se litigants because pro se litigants file frivolous papers and have no idea what they are doing. If you are going to represent yourself, you are going to be held to the same standard as an attorney and you will be expected to follow the rules and timely present motions or else your request will be denied. The judge is there to act like a referee in a football game - to make sure both sides follow the rules. The judge is not there to be your legal counsel and raise issues in your defense. If you want the judge recused, you would have to file a motion to recuse the judge. In the motion you have to set forth the grounds for recusal. You have to file the motion with the court and serve a copy on opposing counsel (it would be the executor of your father's estate if his estate is still pending) as well as the judge. And you would have to confer with the estate counsel or the personal representative and the trial court administrator and get your motion heard. You are barking up the wrong tree. Your focus should not be on filing frivolous motions. Your first task really ought to be to consult a probate litigation attorney who practices in the county where your father's estate is pending. Make a copy of the entire estate file as well as the will which created this testamentary trust. The file should also include the inventory of assets and any proposed accounting. The attorney needs to review these documents to see if the testamentary trust should have been funded. If there were insufficient probate assets, then that will be the end of the matter. If there are sufficient probate assets, then the designated beneficiaries under your father's will would receive his assets. In your case, one of the beneficiaries will be this trust. Funds would then be turned over to the trustee to hold and disburse as per the trust terms. Filing an objection does not seem proper unless you are objecting to the proposed distribution of assets from your father's estate. The probate attorney will have to review the inventory and accounting to know if the distribution is proper or not. If there are some assets in the estate but not enough to pay all the beneficiaries, there is a certain order in which beneficiaries get assets. Since I have not seen the trust and other documents. I don't know how the trust to you is classified. However, if the trust was to be funded by the residue of the estate and there is no resi
Answered on Aug 27th, 2013 at 4:17 AM

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