Q: My dad (deceased) 2nd wife who is executor is trying to steal my siblings and I inheritance can we have her removed?
We went to court 3 years ago and the judge sealed the trust. He said the releif we are seeking is there. However, 2nd wife wrote in a clause after my dads death that we have to wait until her death. 3 months ago my sister got a call from executors attorney stating that she was trying to market and sell a Georgia property that my siblings and I are heirs to purposely not letting us know. Because of this her attorney dropped her as a client seeing fraudulent intent. Since my dad died 4 yrs ago she has cut off all contact with us has refused to carry out any duties as a fiduciary. My siblings and I are all Senior citizens as she is hoping we all die so she and her 4 kids (previous marriage) can get our inheritance that my parents and grand parents left us. Could a judge on the grounds of fraudulent intent as mentioned earlier unseal the trust so that we can get the releif that is ours?
A:
Dear San Francisco:
I recommend that you discuss this with an experienced attorney licensed in the State where the court action took place. This particular fact pattern is a bit more complicated than this forum is designed to provide answers to. And, it would require reviewing the trust instrument (document) as well.
Also, you state that the Court "sealed" the trust, and I am not certain what you are referring to. In California, a court that "seals" a matter makes it confidential. That is, you cannot go to court records and view the file unless you have a court order. Generally, this is done for cases in which the person's right to privacy outweighs the need to keep a matter part of the public record.
As a general matter, if a beneficiary has reason to believe that a Trustee is violating their fiduciary duty, the courts can issue a restraining order, remove the fiduciary, or craft other appropriate relief.
I'll note here also that you mention that the second wife "wrote in a clause" after your father death that apparently delayed distributions till she passes. There is the possibility that this is not allowed to some or part of the Trust. As a general rule, when married persons create a trust the trust splits after the first death. Generally one trust, the survivor's trust, if funded with the survivor separate property and one-half of the couples community property. The Decedent's separate property and their share of the community property, funds the second trust. I'll call the second trust the "B Trust" as it goes by many names.
The key here is that the B Trust is normally not subject to amendment, or amendments limited, after the death of the first spouse. In contrast, the survivor normally has the ability to amend the survivor's trust.
Again, I need to stress that without reviewing the actual trust document there is no way of knowing exactly which rules apply and you should seek advice from a competent attorney.
If you do not know where to find an attorney, your local county bar association is a good place to start. Most provide a lawyer referral service that matches you to an attorney who provides a consultation for a nominal, or no, fee.
Best of luck.
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