[WSBARP] Action against Trustee

[Bryce Dille]

That was my thinking client is trust beneficiary. The claim was rejected because trustee's estate  claims the 3 year statute of limitation applies since this was only asset of the trust that was taken out of trust and therefore they are claiming trust terminated and the 3 year period began when asset transferred  although the trust by its terms had a minimum 10 year period of distributions and trustee conveyed all assets within first 3years of ten year period my client was unaware of the distribution until after trustee died. Fortunately the trustee held title in his own name until death and did not sell earlier.

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Tuesday, February 11, 2020 10:40 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Action against Trustee

Hmmm....I hate these dilemmas. I make these decisions now simply by proceeding exactly as I would if the defendant were still alive, but substitute the defendant's Estate in the caption. I don't think the law is intended to change the procedure needed to pursue a cause of action based on whether the defendant is alive or dead.

The courts are apparently okay with either, even if you make the wrong decision, so long as you commence a timely action in a court with subject matter jurisdiction. See Estate of Berry, 189 Wn.App. 368, 358 P.3d 426 (2015). Berry appears to hold that a creditor's lawsuit must be filed as an ordinary civil action and not under TEDRA. But, it was harmless error to file it as a TEDRA action since the superior court was the proper court with subject matter jurisdiction, and the creditor filed the action within the 30-day period (on day 29).

In your case, TEDRA might conceivably still be the appropriate procedure for the action against the trustee. In Berry the creditor's claim was based on a breach of contract-decedent had failed to maintain certain real property as required under a written contract. That claim is clearly an ordinary civil action if it were between two living people.

In your case, however, the basic cause of action relates to misfeasance of a trustee, which arguably could be a TEDRA matter. If the trustee was still alive, I think the beneficiary could possibly sue the trustee under TEDRA. However, I think this kind of action is also a poor fit for TEDRA. The definition of "matter" in TEDRA, RCW 11.96A.030(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A&full=true#11.96A.030>, appears intended to deal more with matters "internal" to administration of the trust, and is not really meant to take over the standard form of lawsuit for torts such as breach of fiduciary duty, conversion, constructive trust, etc. I think a regular lawsuit is probably more appropriate.

One question I have though is, who is the proper plaintiff. The distribution was taken from the trust, so it seems to me the plaintiff should be the successor trustee of the trust, with a direct cause of action for damages, or for constructive trust to recover assets from, the defendant (former) trustee.

But if your client is not successor trustee, but only a trust beneficiary-is their action more like a shareholder derivative action, bringing suit on behalf of all beneficiaries, and naming the trust as a nominal defendant as well as the trustee individually?

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Bryce Dille
Sent: Monday, February 10, 2020 5:09 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Action against Trustee

I have a client that has a claim against a trustee who distributed assets to himself in violation of the trust terms. The trustee died and my client (a successor beneficiary)  filed a claim in the trustees estate which claim has been rejected. My question what governs the action should this be a Tedra proceeding  or  a civil action against the trustees estate for damages. Thanks

Bryce H. Dille
Dille Law, PLLC
Office: 360-350-0270
Cell: 253-579-5561

** Please note that I use the dictation feature of my iPhone and that sometimes everything I say does not get properly translated**

This transmission contains confidential attorney-client communications and may not be disclosed to any person but the intended recipient(s).  If this matter is transmitted to you in error, please notify the sender immediately.

Business Entity Creation and Management
Business, Government and Tax Law
Real Estate and Land Use, Residential, Commercial and Condominium Development Real Estate and Commercial Transactions & Closings, Including Performing Services as IRS Section 1031 Exchange Facilitator Estate Planning, including Wills and Trusts, and Probate Administration Representation Homeowners/Condominium Association Real Estate Developments Real Property Foreclosures and Forfeitures

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20200211/467643cd/attachment.html>