Kathleen Daniels, Probate and Trust Real Estate Specialist, received a request for a consultation from a successor trustee in California of their mother’s trust looking for help with an eviction. She needed to “evict a tenant so they can sell the home and distribute the assets to the beneficiaries.”
With little information on the consultation request form, during the consultation call, we learned the mother had been diagnosed with brain cancer. Prior to her death, the mother designated the daughter who called us with the task of preparing the estate plan documents to be the successor trustee of the trust.
She went to the stationary store to purchase forms to complete the estate planning and trust document. She acknowledged she did not know what she was doing but she did not want to hire an attorney because she wanted to save money.
Death of Trustee. Her mom passed away 5 or so months ago. The brother living free in the home for many years refused to move out so the home could be sold. Holy heavens how many times have we heard that?
Successor Trustee Fiduciary Duties
She went to the stationary store to buy the eviction forms to evict her brother. She said they actually went to court. At the eviction court trial, the brother living in the house refused to discuss a settlement with a mediator. The judge had to deny the eviction because the Petitioner was listed as the daughter as though she owned the property. In other words, just in her name. Let’s assume the daughter’s name was Betty Smith. The petitioner should be listed as Betty Smith, successor trustee of the Smith Family Trust dated [the date of the trust] or something similar depending on the title of the trust.
How to sign as successor trustee. The court documents would also need to be signed to reflect the representative capacity mentioned above, by the successor trustee of the trust, not the person as an individual.
Despite the fact that the judge was given a copy of the trust, judges must follow the law and ensure that documents are properly prepared and legally signed. In this case, it was not. Therefore, the judge had to deny the eviction request.
The caller was faulting “the eviction guy” she hired with the “expertise” who looked over the papers. The more information we gathered, it turns out, the eviction guy was the legal process server, the person who serves the eviction papers. That person is not an attorney, paralegal, or qualified to look over documents and advise if they look okay. In other words, give legal advice.
As we are gathering more information, we learn that she already has a real estate agent. She is going to hire a “neighbor kid to use as a realtor.”
The successor trustee had not yet signed a listing agreement with the agent. We have to trust that what people tell us is the truth. However, that is not always the case. If she had signed a listing agreement, we would need to advise her that we cannot discuss anything further, doing so may be considered interfering with a contract. We would never knowingly do that.
At this point she asks if she needs to serve him an eviction notice again, can she serve a 3-day notice, or does it need to be a 60-day notice?
We explained that we are not licensed attorneys and therefore we cannot give legal advice. Even if we happen to know the answer, we are not licensed to give legal or tax advice.
It amazes us how those words seem to fall short of hearing or understanding and the legal questions get repeated. We get it. People want answers and some do not want to pay a professional for help. That leads them to search online to talk to whoever will give them free advice.
Not only will we not step on those landmines, but it is also a danger zone for the successor trustee as well. She already went to the wrong people and got bad advice which is costing her time, frustration, and delays in getting the home sold. It could also cause a beneficiary to request to have her removed as successor trustee.
The number of hours we spend on consultation calls varies from week to week. We spend as much time as we need to complete the call. Last week, we had a call that lasted three hours. That resulted in the person deciding to hire us and an appointment to meet at the property that needed to be sold.
We know from the countless hours we spend consulting with people that often the people calling just want to get FREE advice.
She asked if we had anyone to recommend. Our recommendation was to ask the real estate agent she plans to hire to list the home. They should have all the resources their clients need. If they don’t then they are left to their own resources and Internet searches for an attorney or qualified service provider to assist with the eviction process.
The Internet is a powerful source of information. The information we find is only as good (accurate) as the person providing it. When we seek FREE information, it is prudent to use it with discretion and not rely upon it as true or accurate.
While we do provide free consultations it is done to determine if we can help and if so, how we can help. Help may come in the form of referring out to an attorney, a lender, or an out-of-area real estate agent. The ultimate way we help is when we are retained to provide our real estate services.
When professionals engage with a client it often is in the form of an engagement letter or some form of contract. Once retained, the business relationship begins as does ownership and accountability.
Real estate and other professionals take on fiduciary duties, responsibilities, and liabilities when working with clients. For real estate agents that means a signed listing agreement that authorizes us to work on behalf of our clients is necessary. Without a contract, there is no authorization. There is only so much we can do for people without being hired to represent them.
Because we understand the risks, we exercise great caution in the information we provide to people calling for help. It is not a matter of not wanting to help everyone. It is a matter of good business practices, and risk management policies. We do not manage evictions. It is our best practice to recommend an eviction attorney to our clients. We work together with the eviction attorney in managing the eviction process.
If you are a successor trustee of a trust and need an eviction to take place before you can sell the home, we can help. We are a full-service independent brokerage. Kathleen Daniels is certified in Professional Fiduciary Management for Trustees and a Certified Probate Real Estate Specialist. All of our tried, trusted, and true resources are reserved exclusively for our clients. It is among the many benefits they receive for choosing to hire us.