Is Legal Counsel Mandatory for Beneficiary Acquiring House in Trust?

[PR660]

Jurisdiction

California

I was beneficiary of my mother's Trust which had an amendment that stated that any one of her children would have the opportunity to acquire the house. When she passed, the Trustee retained an attorney (who turned out to be crooked - I am in litigation to this day, almost 9 years later).

Anyhow, at the time, I stated my interest in acquiring, but the attorney wouldn't talk to me and said I needed to be represented by counsel.

I ended up spending approximately $6,000 in legal fees and was not successful. Could someone please tell me if there is recourse?

Thanks for your time!

 

[army judge]

I ended up spending approximately $6,000 in legal fees and was not successful. Could someone please tell me if there is recourse?

If you're smarter than the average human, you know when to hold `EM, when to fold `EM.

 

[adjusterjack]

Could someone please tell me if there is recourse?

How about filling in some details.

What happened to the house?
Did one of your siblings "acquire" the house? How so?
If not, was it sold?
Did you get any money from the proceeds?

 

[PR660]

How about filling in some details.

What happened to the house?
Did one of your siblings "acquire" the house? How so?
If not, was it sold?
Did you get any money from the proceeds?

The house sold in 2016 to an outside party. I have not received any proceeds to this date.
I began contacting the Trust attorney (and Trustee) in 2017 - 2019 about the status of affairs to no avail. In 2019 I threatened legal recourse and finally received the accounting where there was $74,000 in attorney fees, and a loan originated on the Trust that cost the Trust $50,000, etc etc.

The Trust consisted of a house and one bank account.

I had objections, but there was no response from the attorney, so again, I was forced to retain legal counsel and have been in litigation to this day.

 

[adjusterjack]

Since litigation is likely your only recourse and you are in litigation already, I don't know what else to tell you.

 

[Tax Counsel]

I ended up spending approximately $6,000 in legal fees and was not successful. Could someone please tell me if there is recourse?

Recourse for what, exactly? The legal fees you paid are generally not recoverable from the opposing side when you are the one who started the litigation in the first place. You might be able to pursue legal fees if the trust keeps the case alive just to string things out as long as possible. Your lawyer should be able to tell you what your prospects are for that.

The lawyer for the trust who told you to get your own lawyer wasn't your lawyer and wasn't providing you legal advice, so there is no malpractice or other similiar remedy against the attorney for the trust. And you are already suing the trustee and the trust to get what you claim the trust entitles you to receive. So apart from those two types of claims, what other remedy did you have in mind?

 

[PR660]

This ($6000 in legal fees for the property acquisition) was not part of the litigation. It happened years prior. A realtor of over 30 years told me that, in accords to the Trust amendment, a transfer of title could have been easily executed without any retention of legal counsel.

 

[Tax Counsel]

This ($6000 in legal fees for the property acquisition) was not part of the litigation.

What would the claim be for and who would you sue? You made the choice to hire a lawyer. No one forced you to do it. So is your problem with someon recommending you get a lawyer, or with the lawyer himself/herself for work done?

It happened years prior.

What happened years earlier? The payment of $6,000 of legal fees or something else? Note that you only have a limited time to file a lawsuit. In most states, depending on the nature of the claim, that time typically will be between two to six years. Once the time allowed to file the lawsuit (which is called a statute of limitation) has passed, any claim you file in court after that will simply get dismissed on a motion by the opposing party, and might get you hit with some monetary sanctions by the court.

A realtor of over 30 years told me that, in accords to the Trust amendment, a transfer of title could have been easily executed without any retention of legal counsel.

Perhaps it could have. But bear in mind that real estate sales people and brokers are not lawyers and don't always spot the legal problems lurking in the deals they are trying to put together. Some of them also think they know more about the law than they really do. I would not do any significant deal involving real estate without the advice of an attorney who specializes in real property law. Sales people are motivated by commission to get a deal done, and as a result tend to be reluctant to recommend anything that might slow down or kill the deal, even if that might actually be the best thing for the buyer/seller they are representing. So when a real estate sales person tells me that something "really isn't a problem" when looking at the contract or some other important part of the deal I take that with a huge grain of salt. I don't want to rely solely on the advice of someone who only gets paid if the deal closes and especially as a buyer I'd be wary of the advice given because the bigger the sales price the bigger commission the sales person gets, which can lead to buyers overpaying.

Now, the transfer from a trust to beneficiaries doesn't have a sales price and doesn't typically involve real estate sales people. The main purpose of a real estate sales person is to bring buyers and sellers together — a sales function. They are not generally experts in the law and should not be relied upon for any legal advice. The advice they give in that kind of situation may well violate the rules against the unauthorized practice of law. And how is that sales person being compensated? If indeed the transfer is easy, the fee for the lawyer should not be terribly high. But if there are problems with it, you want to know about it (and the lawyer is more likely to spot that problem) and get good advice from someone who is obligated to cover your back on how to fix it than relying on someone being paid on commission for the transaction.

 

[PR660]

What would the claim be for and who would you sue? You made the choice to hire a lawyer. No one forced you to do it. So is your problem with someon recommending you get a lawyer, or with the lawyer himself/herself for work done?

From the OP: "Anyhow, at the time, I stated my interest in acquiring, but the (Trust) attorney wouldn't talk to me and said I needed to be represented by counsel."
Therefore, my problem would be with the Trust attorney who wouldn't have words or correspondence with me until I retained counsel.

 

[Zigner]

From the OP: "Anyhow, at the time, I stated my interest in acquiring, but the (Trust) attorney wouldn't talk to me and said I needed to be represented by counsel."
Therefore, my problem would be with the Trust attorney who wouldn't have words or correspondence with me until I retained counsel.

The trust attorney would talk to you, but it sounds like you were asking for advice. The trust attorney is not YOUR attorney and cannot give you advice, which is why they suggest that you retain counsel.

 

[Tax Counsel]

From the OP: "Anyhow, at the time, I stated my interest in acquiring, but the (Trust) attorney wouldn't talk to me and said I needed to be represented by counsel."

And how long ago did that conversation with the trust attorney take place? If it was nine years ago then it's too late to sue the trust attorney over that now. So the answer to this question will address whether you can even proceed with suing the lawyer now

Even if there is still time, the trust attorney had no duty to you. The trust attorney's duty is to the trust. It is the trustee and the trust that have the responsibility to properly manage and distribute the trust assets. It is the trustee who should be communicating with you. Did you ever communicate directly with the trustee to express your interest? That would have been my next step after the trust attorney refused to talk with me. If you didn't go to the trustee then why did you make that choice? If the trustee wasn't cooperative that's when I'd consider a lawsuit, but it would be against the trustee and the trust, not the trust's lawyer. That's because it is the trust that would have the obligation to consider your request for the home and act accordingly given the terms of the trust.

So far I'm not seeing a good basis to sue the lawyer. But you might find it worthwhile to consult an attorney just to see if you have any realistic shot of winning this claim. Maybe there is something in the facts that you have not provided that would give you something to work with. I'm not your lawyer and not in your state, and the information I'm giving you is general in nature since I don't have nearly enough information to give you legal advice even if I were allowed to do so. A message board forum is good for getting general information to get you started on an issue. But it is no replacement for actually consulting an attorney in your state who has all the facts available to sort out what claim, if any, you might have out of this.

 

[PR660]

And how long ago did that conversation with the trust attorney take place? If it was nine years ago then it's too late to sue the trust attorney over that now. So the answer to this question will address whether you can even proceed with suing the lawyer now

Even if there is still time, the trust attorney had no duty to you. The trust attorney's duty is to the trust. It is the trustee and the trust that have the responsibility to properly manage and distribute the trust assets. It is the trustee who should be communicating with you. Did you ever communicate directly with the trustee to express your interest? That would have been my next step after the trust attorney refused to talk with me. If you didn't go to the trustee then why did you make that choice? If the trustee wasn't cooperative that's when I'd consider a lawsuit, but it would be against the trustee and the trust, not the trust's lawyer. That's because it is the trust that would have the obligation to consider your request for the home and act accordingly given the terms of the trust.

So far I'm not seeing a good basis to sue the lawyer. But you might find it worthwhile to consult an attorney just to see if you have any realistic shot of winning this claim. Maybe there is something in the facts that you have not provided that would give you something to work with. I'm not your lawyer and not in your state, and the information I'm giving you is general in nature since I don't have nearly enough information to give you legal advice even if I were allowed to do so. A message board forum is good for getting general information to get you started on an issue. But it is no replacement for actually consulting an attorney in your state who has all the facts available to sort out what claim, if any, you might have out of this.

Thanks for your detailed reply. The Trustee is my sister and "apathetic" is an understatement about her. ANYTHING that is directed to her is replied by, "Talk to _____ about it... (the Trust attorney)."

Perhaps, I'll mention it to my legal counsel who has been handling the Trust litigation since 2019.

Understanding the statute of limitations, is it possible that this 6000 cost be included in this litigation case as it involves activities related to the trust (including the acquisition attempt)?