Q. As beneficiary of a California Trust Agreement now supporting my mother, am I entitled to an accounting?  I co-signed the original Trust Agreement (“Trust Estate”) as a beneficiary.  I suspect mismanagement of the trust, or worse. The trustees have refused to send me the latest version of the Trust Agreement and the latest accounting of the Trust.

A. If the trust is still revocable, the trustee has no duty to account to you. If the trust has become irrevocable, however, then according to California Probate Code Section 16061:

“…on reasonable request by a beneficiary, the trustee shall provide the beneficiary with a report of information about the assets, liabilities, receipts, and disbursements of the trust, the acts of the trustee, and the particulars relating to the administration of the trust relevant to the beneficiary’s interest, including the terms of the trust.”

This may be modified by the trust document itself, but to avoid an accounting they will have to prove that the trust waives the duty to account.

It sounds as if the trustee will not take you seriously without an attorney on your side. I suggest you contact one to speak on your behalf, and to remind the trustees of the potential they will be held personally liable for breaches of trust.

Good luck!

Dear Sir:  Father did not own any property and did not have a will. Was divorced before death from my mother. Never remarried. My mother believes I was named the executor during the divorce proceedings but I was never notified. My father got very sick soon after the divorce and died. Have one brother who was not notified of being the executor. Items left to us have a value of maybe $2500, but legally need an executor to transfer ownership to a properly licensed person.  How do I get the property?

Answer:

I’m sorry for your loss.  How this situation is handled will depend on the state your father was living in at the time of his passing.  All states have some form of small estates administration that will permit you to access small amounts of property with some form of affidavit procedure, rather than a formal probate. With that affidavit, it is not necessary to look for a ruling a divorce proceeding – you simply notify the account holder that your father has passed away, that you and your brother are the legal heirs under the intestacy law of that state, that no other claimant exists with a better claim, and that no probate proceeding is anticipated. Attach a copy of the death certificate and you should be given the property.

In California, this is handled under Probate Code Sections 13100 et seq.  That being said: each state’s requirements for the small estates administration procedure is slightly different, so you’ll want to consult a probate attorney in the proper state.

In California, both the personal representative (an executor or administrator) and the personal representative’s attorney are entitled to compensation.  If the Will specifies the compensation, then that’s all they can receive (P.C. 10812).  If the Will doesn’t specify, then the personal representative and the attorney are each entitled to fees for ordinary services (P.C. 10810) and fees for extraordinary services (P.C. 10811).

Fees for extraordinary services must be approved by the Court and are in an amount that the Court considers “just and reasonable”.

But fees for ordinary services are set according to the gross value of the estate, without reference to encumbrances or other obligations.  In other words, if your home has a fair market appraisal of $1,000,000 then the fees are set on that amount, even if you have a $900,000 outstanding mortgage!

 Here is the fee table, based on gross value of the estate:

 What does this tell us? First, that everyone needs to avoid probate.  Second, that the smaller the estate, the harder the beneficiaries will be hurt by probate fees. 

Contact a qualified estate planning attorneyin your area, or call the Law Office of Daniel K. Printz at (858) 740-4370 to make an appointment.