TRUSTEES CANNOT ALWAYS BE TRUSTED
Trustees cannot always be trusted
(The Fox Watching the Hen House)
There is an old expression that you do not give a Power of Attorney to someone unless you would also trust them with a loaded gun. The same goes for naming a Trustee of a trust.
Not too long ago I was retained by surviving children to look into their father’s trust assets. This trust was established by their father’s estate for his surviving spouse (the children’s mother). Once the father died an attorney took over as Trustee for their mom. The Trustee filed an account every two years with detailed accounting, copies of bank statements and copies of the Certificates of Deposit (CDs) owned by the trust, substantial Key Bank stock holdings, other corporate stock holdings and checking and savings accounts. All the accounts were reviewed and approved by the Probate Court for many years. It seems during the trust, the children were not getting the answers they needed from the Trustee despite numerous demands. Unfortunately, mom died and then shortly after their mother, the attorney/trustee died. The trust money could not be located. Upon the children’s request I obtained 20 years of records, bank statements and accounts filed with the Probate Court, and embarked on a very tedious examination of all 20 years of bank statements and court records.
The only payment required to be paid by the trustee was a quarterly payment of accumulated interest to the beneficiary, the Grantor’s surviving spouse. This is a very common provision in trusts. The remainder of the Trust was to hold and invest the assets for the children. All the accounts, and the bank statements filed with the court, showed the quarterly payment was made to the mom as directed. I then sent a letter to the bank asking about the status of the CD, a copy of which was filed with the Probate Court account. I received a telephone call from the bank saying there was no such CD in the trust name but, there was a CD long ago in the father’s name. Upon closer inspection it appeared to me the CD filed in court by the trustee had been altered. I then found other manipulated variations of the same CD in the Trustee’s records. As it turns out all the CDs were altered and forged by the trustee. The family also wanted to know the status of the Key Bank stock listed in the account filed in court. I then discovered a tax Form 1098 confirming the Key Bank stock had been sold 15 years earlier. Not only was it sold but the proceeds were never deposited into any of the Trust financial accounts. After an exhaustive review of all the records I discovered 100% of the trust assets were liquidated and deposited into personal accounts owned by the Trustee. I also found that, to make it look like he was doing his job, the Trustee would make a deposit to the trust account from his personal funds on a quarterly basis, and would then write a check to the surviving spouse the next day as if he was distributing the interest income (calculated using fictitious numbers) from the trust.
To add insult to injury, when the mother died the Trustee handled her estate. When her house was sold the trustee, as a favor to the children who lived out of the State, went to the closing by himself to collect the sale proceeds. The check was made out to the estate of the decedent. The Trustee then promptly went to the bank, endorsed the check as her Power of Attorney, and deposited the check into his personal account, not the trust account. Although he did have a Power of Attorney for the mom, a POA immediately terminates at the time of death and the bank knew she had passed away. They should not have allowed that transaction. He essentially stole all the trust assets totaling about $500,000.
Fortunately I was able to recover substantially all the stolen funds through suits against the insurance bond required for the trustee and against the bank that negligently cashed the check for the Trustee. Beneficiaries of trusts need to be vigilant in requesting documentation of trust assets from the Trustee. Ohio has a new Trust Code that requires this disclosure even if the Trustee does not want to make such disclosures. If you are the beneficiary of a trust, and you request disclosure and documentation of the assets and it is not provided, you need to act fast. You can either compel the disclosure or file in court to remove the Trustee for said failure. Call me, I will get it done.