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Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len and Rosie,

Both of my parents are now deceased, the most recent being my step-dad.

Are the four of us adult children legally due to receive a financial statement of how funds were spent during my dad’s illness?

Are we entitled to a copy of the trust at no charge, along with the financial statement?

The lawyer hired by the trustee is charging $1,000 for a copy of the trust, if we want it, and it has been stated that no one will receive a financial statement until after all funds are [disbursed] at the end of a waiting period.

We were told the waiting period was 120 days but are now hearing it could be six months.

Bill

Dear Bill,

The trustee is legally obligated to provide you a copy of the entire terms of the trust, at no cost, if you request one.

The trustee was also supposed to provide you a notice pursuant to California Probate Code section 16061.7 within 60 days of your stepfather’s death telling you this.

Having said that, we find it hard to believe that any lawyer would tell anyone that it’ll cost you $1,000 for a copy of the trust document.

In any event, legal fees of the trust are paid off the top by the trustee before the trust is divided and distributed to the beneficiaries. It shouldn’t come out of your share.

This sounds more like you have an arrogant trustee who thinks that he or she is actually in charge and gets to make all the rules.

Instead, the trustee is a fiduciary in charge of other people’s money. The trustee owes you and the other beneficiaries an impartial duty of loyalty and competence.

The trustee is also required to provide an accounting to all of the beneficiaries presently entitled to distributions of trust income or principal.

And by “accounting,” we don’t mean a simple financial statement. We mean a formal accounting following the rules of the court which is really an exercise in double-entry bookkeeping that mere mortals don’t know how to do themselves.

This accounting runs from the date of death to the distribution of the trust assets.

Normally, you are not entitled to an accounting for the period prior to your stepfather’s death. But if you suspect the trustee is up to no good, you can petition the court to compel an accounting for the entire time the trustee was in charge.

The 120-day waiting period is mentioned in that notice you were supposed to have received.

Once the notice is mailed out, a 120-day countdown begins. When it ends, you will lose your right to contest the trust.

By “contest the trust,” we mean filing a court petition asking the court to declare that the trust document is void.

You will still be able to enforce your rights as a trust beneficiary, including the right to compel the trustee to provide you with an accounting if one isn’t forthcoming.

Once this countdown ends and the home is sold, if there is one to be sold, there is usually nothing to prevent the trustee from distributing most of the trust assets, retaining enough to file trust income tax returns next year and to cover any potential creditor claims against the trust, as creditors have a year from the date of death to sue on your stepfather’s debts.

Len and Rosie

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