The Guide to Family Trust Embezzlement and Stealing

Family trust embezzlement and stealing is more common than you might think. At RMO Lawyers, we investigate, prosecute and defend these claims every day.

What is family trust embezzlement?

Embezzlement is a form of theft, and it is a crime. In the case of family trusts, embezzlement refers to misappropriation of funds belonging to the trust, or to the decedent that should belong to the trust but were stolen before their passing. A trust litigation attorney handles the civil litigation (monetary relief) aspect of an embezzlement case, not the criminal case. Any beneficiary or trustee may choose to only prosecute an embezzlement claim in a civil court, without asking for criminal charges to be filed. IMPORTANTLY, you cannot threaten to have someone charged criminally to gain an advantage in your civil case. That will only expose you to potential criminal liability yourself.

Can a trustee steal from a family trust?

A trustee is the individual or entity charged with managing the trust. It is the trustee’s duty to make responsible decisions with the trust fund assets. A trustee typically cannot take any funds from the trust for him/her/itself — although they may receive a stipend in the form of a trustee fee for the time and efforts associated with managing the trust. If trust beneficiaries feel that the trustee is stealing funds, they should ask the trustee to account (report on what they’ve done with trust assets). If through the accounting, or otherwise, beneficiaries learn that a trust stole money, they can charge the trustee with breaching their fiduciary duty and have them removed and surcharged. The beneficiary’s goal here is to recover the funds for the trust, and if successful the trustee may be allowed to recover his/her/its attorney’s fees and costs.

How can I tell if a trustee is stealing from a family trust?

To prove that a Trustee is stealing from a family trust, we would typically look for evidence that the trustee made transactions or payments that benefited him/her/itself but did not benefit the trust beneficiaries. The most common misappropriations we see are “loans” to the trustee or other “friends,” personal property that suddenly goes missing, and overcharging for legitimate services that simply don’t cost what the trust is being charged.

What is criminal misappropriation of property?

Criminal misappropriation of property is a charge associated with a criminal court case. It is not part of the civil case proceedings. In our experience, while most beneficiaries are frustrated with thieving trustees and what the wrongs righted, the vast majority do not wish to see the trustee incarcerated or even prosecuted.

What is a breach of trust?

A breach of trust most commonly refers to a trustee’s breach of fiduciary duty. A trustee is required to act prudently and consistently with what a reasonable trustee would do in a similar circumstance. Trustees cannot play favorites, act in a manner that does not benefit the trust beneficiaries, etc. In essence, a trustee has a fiduciary duty to put trust beneficiaries’ interests first, and when they do not they most likely will have breached a fiduciary duty.

When do I need a trust litigation attorney?

The moment you suspect a breach of trust, embezzlement, or a trustee stealing from a trust, it’s time to contact a trust litigation attorney. Many trust lawyers will offer a free consultation, and many won’t charge you a thing unless you obtain a settlement or are successful at trial.

How do I choose a trust litigation attorney?

Choosing the right trust litigation attorney is important. Here are three elements to look for:

1. Look for a trust litigation attorney with experience investigating, prosecuting and defending your specific legal claims.
2. Look for a trust litigation attorney with whom you feel comfortable and have a good report. Litigation is an emotionally taxing and can be a long experience. While many people think they want a “shark” or a “pitbull,” the reality is that you want someone who understands you and your case, listens to you and your goals, and has a strategy to achieve your goals and is able to execute upon that strategy.
3. Look for a trust litigation attorney who is able to meet your financial needs. If you are unable to fund the litigation, find a contingency trust litigation lawyer. If your lawyer believes in you and your case, they should have no problem offering a contingent fee arrangement.

Do I need a trust lawyer near me?

We recommend finding an experienced trust attorney familiar with the county probate court in the county where the trust is located. For example, if the beneficiary lives in San Diego, yet the trust is in Los Angeles, we recommend working with a trust lawyer in Los Angeles. A Los Angeles trust lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.