Selection Of Proper Trustee Is Key To Administration Of Trust

FEBRUARY 2, 2004 VOLUME 11, NUMBER 31

Although it is important to plan your estate, it is sometimes not enough just to prepare important documents and make reasonable decisions. It is also critical to select a reliable person to administer that estate. While family members may be the best choice, things may not always work out the way you expect or intend.

Alfred and Guadalupe Del Castillo had four children: Albert, Alice, Ralph and Robert. The youngest, Robert, suffered from cerebral palsy and was developmentally disabled. Mr. and Mrs. Del Castillo, as responsible parents established a special needs trust for Robert—in fact, their wills directed that all their assets would be held for Robert’s benefit after they both died.

Son Albert was named as trustee of the special needs trust. Like most parents, Mr. and Mrs. Del Castillo apparently thought family members would be the best at judging what Robert actually needed and at using their money to assist and protect him. They didn’t count on the family warfare that erupted later.

Albert, Alice and Robert all went to see California attorney Robert James Skousen after both parents died. The result of that visit was that Mr. Skousen, representing Alice, secured her appointment as personal representative. As Alice began to administer her mother’s estate, however, conflicts arose between the siblings. Eventually Mr. Skousen, now representing Albert, filed a petition to remove Alice and put Albert in charge of both the estate and the trust.

Over the next several years the two siblings filed charges and countercharges about the administration of the estate and the trust. Albert, through Mr. Skousen, persistently asked for a finding that Robert should not be considered a beneficiary of the trust, since any money distributed to him might be subject to a claim by the state—although that is exactly what a special needs trust is intended to prevent.

While all the legal wrangling proceeded, Robert was first left to live alone in the Del Castillo’s family home for two months, then moved to an assisted living facility. Because Albert refused to distribute any significant portion of the trust’s assets or income for Robert’s benefit, he lived for the next several years on his Supplemental Security Income (SSI) benefit, plus California state subsidy, totaling less than $800 per month. From that, his rent and nearly all living expenses had to be paid, and little outside stimulation or oversight could be provided. Although Alice sought to force distributions for Robert’s benefit, Albert resisted; both siblings filed counter-petitions for conservatorship over Robert in order to gain control over his living arrangements. Of course, if the siblings had gotten along and Albert had simply followed his parents’ apparent wishes to provide for Robert, no court proceedings would have been necessary to secure Robert additional help and services.

The case briefly traveled to the state Court of Appeals, the Nebraska courts (where Albert lives) and California Federal District Court. Each of those courts declined to exert authority over the proceedings, and returned them to the California probate court for resolution. That court ultimately removed Albert as personal representative and trustee, but not before Mr. Skousen’s firm had billed the estate and trust $387,000. A private fiduciary, Patricia Lobello, was appointed to administer the estate and trust, and promptly objected to Albert’s legal accounting, and especially the legal fees.

The California Court of Appeals upheld Albert’s removal as trustee and referred the entire matter to the State Bar of California for a review of Mr. Skousen’s behavior. In a scathing opinion detailing the history of the case and the excesses of the parties and Mr. Skousen, the Court wrote: “The parents, who had established the trust and ordered their estates ostensibly to provide for the extraordinary needs of Robert, would undoubtedly turn over in their graves could they but know that some of the other children have instead squandered a considerable portion of the assets over $300,000, in divisive litigation, marked by finger-pointing, name-calling, personal animosity, self-aggrandizement and misfeasance, at the expense and to the detriment of their disabled sibling.” Indeed. Estate of Del Castillo, January 22, 2004.

What might Mr. and Mrs. Del Castillo done differently to prevent family bickering, abandonment of their disabled son and outrageous legal expenses? More carefully drafted documents might have helped, and it certainly would have been a good idea to discuss their intentions fully with all their children (and grandchildren, for that matter). They might have selected an independent, professional trustee, though there would have been costs associated with that decision, too—but probably not anywhere near the costs ultimately incurred by Albert and Alice in their legal skirmishes.

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