what can you do when your lawyer has a breach of trust

You suspect that your lawyer has misused money you paid as a retainer. Stealing a client's money is malpractice, because your lawyer has a duty to use your funds only for your case. If you seriously suspect your lawyer has misused any money he holds for you in trust, complain to your state's attorney regulatory agency right away.

Full Answer

How do you get damages from a breach of trust?

California courts have several different methods to obtain damages, including a constructive trust, a surcharge or reduction in the amount of the trustee’s inheritance share or fees from the trust, or a money judgment. Misappropriation of trust funds is a common cause of action in breach of trust lawsuits.

What to do if a trustee is abusing his position?

If you believe that the trustee managing an estate you are involved in has been abusing his position, you should strongly consider speaking with a lawyer as soon as possible. Your attorney can help you to gather evidence and take the proper action against a trustee so he does not do any further damage to the assets of the estate.

Can a beneficiary file a breach of trust against a trustee?

If a beneficiary wants to file a breach of trust against a trustee, he or she must generally do so within one year of the incident’s original documentation.

What to do if you’re accused of breaching your fiduciary duties?

If you’ve been accused of breaching your fiduciary duties or misappropriating trust funds, contact an experienced trust litigation attorney as soon as possible. The sooner you begin working with a trust litigation attorney, the better your odds of protecting yourself.

What happens if a trust is breached?

If there is a breach of trust, the attorney files a court order to compel the trustee to release the trust assets’ financial report. Your attorney works closely with an accountant to ascertain an accounting for every expense. If there are discrepancies, the attorney files a breach of fiduciary duty lawsuit on your behalf.

What happens if a trustee is not acting in your best interest?

If you are a beneficiary in trust and believe that the trustee is not acting in your best interest as stipulated in terms of the trust, you might have a case. A trust litigation attorney can investigate the matter and determine whether it merits as a breach of fiduciary. If there is a breach of trust, the attorney files a court order to compel ...

What can a judge order a trustee to do?

For cases that merit, the judge can order the trustee to repay the trust. Other remedies might include: Removal and replacement of the trustee. Compelling the trustee to fulfill fiduciary duties. Probate or removing some assets from the trust. Legal Counsel for the Fiduciary.

Do trustees need an estate attorney?

It’s essential for trustees to work with an estate planning attorney for proactive legal guidance throughout the management or distribution of the assets in a trust or will. As a fiduciary, you have a right to retain and work with an estate planning attorney-the fee is paid by the trust and not you. The best legal counsel can save you ...

Can a fiduciary be void of personal interest?

As a fiduciary, you have a moral and legal imperative not to use the assets in a trust for personal gain. Your actions needs to be void of personal interest or self-gain.

Breach of Trust

The willful misappropriation, by a trustee, of a thing which had been lawfully delivered to him in confidence.

Examples

In the Year Book, the distinction is thus stated: Pigot.

How long does a beneficiary have to sue a trustee for breach of trust?

Under California law, a beneficiary has three years from when they knew or should have known about the breach to sue the trustee for a breach of trust, although that deadline may be shortened to 180 days if an accounting is provided that sets forth that deadline.

How do you prove breach of trust or defend a breach of trust claim?

According to California Probate Code §16400, breach of trust occurs when a trustee fails to meet one of their legal duties. For example, if a trustee fails to follow the law, the terms of the trust or act in the beneficiaries’ best interest, there may be a claim for breach of trust.

Can a trustee go to jail for stealing from a trust?

Yes, a trustee can go to jail for stealing from a trust. However, this will only occur if they are convicted of a crime in a criminal court.

When should I contact a trust litigation attorney?

Whether you are a trustee being accused of breach of trust or a beneficiary who believes a trustee has engaged in misconduct, you should contact a trust litigation attorney as soon as possible.

Examples of Breach of Trust Claims

Many breaches of trust claims happen when a trustee acts negligently. The trustee may fail to make the proper distributions to beneficiaries. A trustee may fail to properly invest the assets in the trust so they can earn a profit.

The Statute of Limitations on Breach of Trust Claims in California

Every state has statutes of limitations, or time limits, limiting the amount of time a plaintiff has to bring a lawsuit. In California, the statute of limitation for breach of trust, misappropriation, malfeasance, or breach of fiduciary duty can be years, depending on the circumstances of your case.

Bringing a Lawsuit Against a Trustee

Beneficiaries of a trust have the legal right to bring a lawsuit against the trustee for a wide variety of reasons. Remember, a beneficiary does not have to prove that the trustee intentionally harmed the trust assets or the beneficiary.

Damages Available in Trust Mismanagement Cases

When a beneficiary suspects that a trustee has been mismanaging funds, they can petition for the trustee’s removal and replacement. The court may order the trustee to place the assets they took back into the trust. If the trustee spent the money on non-material items, the beneficiary may seek a money judgment instead.

Misappropriation of Trust Funds

Misappropriation of trust funds is a common cause of action in breach of trust lawsuits. Misappropriation of trust funds happens when funds belonging to the trust are not deposited into the trust account. The trustee may deposit the funds into his or her own account or use the funds for purposes other than those approved by the trust agreement.

Contact a Sacramento Trust Litigation Attorney

Trust litigation is complex. Whether you are a trustee who has been served with a lawsuit for breach of trust, or you are a beneficiary who would like to bring a lawsuit against your trustee, you need an experienced attorney.

How long does it take to file a breach of trust?

If a beneficiary wants to file a breach of trust against a trustee, he or she must generally do so within one year of the incident’s original documentation. If the court agrees that the breach took place, in most cases a third party will step in and ensure that the beneficiary’s claim is handled properly and he or she is given what he is entitled to have according to the will or trust. Depending on the nature of the breach and whether or not it can be clearly proven, the trustee may also be subject to removal from the position and ordered to pay fines and/ or compensation to any beneficiaries injured by his or her actions. In addition, a beneficiary may sue a trustee personally in their capacity as the trustee in probate court.

What to do if trustee is abusing your estate?

Your attorney can help you to gather evidence and take the proper action against a trustee so he does not do any further damage to the assets of the estate.

What is abuse of trust?

Abuse of trust is considered a breach of fiduciary duty by the trustee of a will or estate. Abuse of trust most often occurs In circumstances where a trustee’s finances are mingled with the estate or if there is a conflict of interest.

When can't you trust the trustee?

If the trustee doesn’t perform his or her duties as stated, i.e. if he or she acts in a way that is disloyal or careless and constitutes an abuse of trust regarding the wishes of the estate holder, then he or she can be considered in breach of fiduciary duty.

Why is it so hard to determine when a trustee has an abuse of trust?

It can be difficult to determine exactly when abuse of trust has taken place, simply because the trustee’s position does allow for him or her to make judgment calls to a certain extent; this means not all of the rules are cut and dried.

Can a trustee profit from a trust?

A trustee must not profit from the trust, borrow from the trust, or any number of other transactions that would benefit the trustee personally. The trustee fails to stop a co-trustee or other responsible party from acting in a way that constitutes a breach of trust; any co-trustees are jointly responsible for the behavior of all.

Who is a trustee?

A trustee may be a person or an organization that is qualified to handle the distribution of the estate according to the written wishes of the individual upon his or her death. A trustee can, in fact, be anyone specified by the deceased, from a lawyer to a financial investment company to a family member or friend.

What to do when you hire an attorney?

When you hire an attorney, you do so with trust and confidence. Most attorneys are upstanding and do a good job for their clients. Unfortunately, there are also some bad eggs out there. If your attorney has done something wrong, you may want to consider suing a lawyer for malpractice.

How to win a lawsuit against an attorney for malpractice?

To win when you sue an attorney for malpractice, you need to show that: The attorney was supposed to do something. He or she didn't do it (or did it wrong) This resulted in a financial loss to you (losing the case or losing money)

What are the types of malpractice?

Types of Attorney Malpractice 1 Negligence. To sue lawyer for negligence, you need to be able to prove the attorney didn't use the proper care in your case and missed a deadline, filed the wrong papers, didn't comply with court orders, or made other errors that were not intentional but were sloppy. Negligence happens when the attorney makes mistakes that other attorneys normally would not. 2 Breach of duty. This kind of malpractice happens when the lawyer violates his or her responsibilities to you by settling the case without your approval, not preparing the case for trial, lying to you, abandoning your case, misusing funds you provided for court costs, or misusing funds owed to you (such as a settlement amount). The attorney has not done what other attorneys would do in this type of case. 3 Breach of contract. This occurs when an attorney fails to do something he or she agreed to in your contract, such as filing your deed or patent. If the lawyer promised to do something he or she was contractually obligated to do and didn't do it, you have grounds for breach of contract.

What happens if an attorney violates the law?

If the attorney violated proper ethics, you can file a grievance with the ethics committee of the state bar association, which ensures all attorneys are in good standing to renew their licenses. The attorney could be disbarred or directed to pay you compensation.

What is a breach of contract?

Breach of contract. This occurs when an attorney fails to do something he or she agreed to in your contract, such as filing your deed or patent. If the lawyer promised to do something he or she was contractually obligated to do and didn't do it, you have grounds for breach of contract.

Can an attorney be disbarred?

The attorney could be disbarred or directed to pay you compensation. If you are disputing a fee with your lawyer, the state also likely has a fee dispute committee that can help you obtain an out-of-court resolution. You can hire another attorney to complete or fix your case and obtain the outcome you need.

Can you sue a lawyer for negligence?

To sue lawyer for negligence, you need to be able to prove the attorney didn't use the proper care in your case and missed a deadline, filed the wrong papers, didn't comply with court orders, or made other errors that were not intentional but were sloppy.

How to file a complaint against a lawyer?

In most states, you can file your complaint by mailing in a state-issued complaint form or a letter with the lawyer's name and contact information, your contact information, a description of the problem, and copies of relevant documents. In some states, you may be able to lodge your complaint over the phone or online.

What happens if a client fires a lawyer?

When a client fires a lawyer and asks for the file, the lawyer must promptly return it. In some states, such as California, the lawyer must return the file even if attorneys’ fees haven’t been paid in full. Lawyer incompetence. Lawyers must have the knowledge and experience to competently handle any case that they take on.

What is the role of a lawyer?

Lawyers are given a lot of responsibility and often deal with serious matters, from criminal charges to child custody to tax and other financial matters. When you hire a lawyer, you are trusting him or her to represent your interests in the best manner possible. To protect the public—and the integrity of the legal profession—each state has its own code of ethics that lawyers must follow. These are usually called the “rules of professional conduct.”

What is incompetence in a lawyer?

Lawyer incompetence. Lawyers must have the knowledge and experience to competently handle any case that they take on. They must also be sufficiently prepared to handle matters that come up in your case, from settlement negotiations to trial. Conflicts of interest.

What happens if you don't report a violation of the law?

If there's no evidence of a violation, the board will dismiss the case and notify you. If the violation is minor, a phone call or letter to the lawyer usually ends the matter.

What are the rules of professional conduct?

The American Bar Association publishes the Model Rules of Professional Conduct, which lists standard ethical violations and best practices for lawyers. Some states have adopted the model rules as their own ethical rules, while others use it as a guide and modify or add rules.

Who reviews ethics complaints?

In most cases, a board of lawyers and non-lawyers will review the complaint. If there’s a potential ethical violation, the board will give the lawyer a copy of the complaint and an opportunity to respond.