If a trustee might be stealing from a trust, a trust fraud attorney is needed. The word “trust” has many meanings. It’s a noun, a legal creation allowing someone to benefit from another’s assets. It’s also a verb, meaning you believe a person is honest and will do as they say. One can’t exist without the other. When a person in charge of a trust uses it to their benefit, they violate the trust’s terms, and the trust others have in them. As a result, a beneficiary can sue the trustee.

Estate planning attorney Kelvin Birk creates trusts for clients to help them reach their goals. If you benefit from a trust and believe you’re being cheated, he can help. If you’re a trustee wrongly accused of fraud, he can also defend you against these allegations. Call our team today at 573-332-8585 and you’ll have an experienced trust fraud attorney on your side.

What is a Trust?

There are many kinds of trusts that can reach different goals. They can be simple or complicated. They can be funded with minimal assets, substantial wealth, or in the future through your will. They all have in common these facts:

  • A trust is a legal document.
  • It involves a third party (the trustee).
  • The trustee can maintain and/or distribute financial assets for a beneficiary or beneficiaries (who get value from the trust).
  • The trustee must follow the law and the instructions in the trust.

What Does a Trustee Owe to the Trust and Beneficiaries?

The trustee has a legal duty of loyalty to the beneficiary, and there’s a fiduciary relationship between the two. The trustee must act without a personal economic conflict. This can be breached when a transaction is made that only benefits the trustee, not the beneficiary. The trustee must act in the beneficiary’s best interests and in good faith.

A settlor (the person creating the trust) must choose a trustee carefully because of the potential for fraud, waste, and abuse. A trust may incorporate ways to discourage or prevent fraud, such as strictly limiting what a trustee can do or having more than one trustee approve how assets and proceeds are spent. No matter the situation, if a crooked trustee is motivated enough, they can find a way to steal trust assets.

How Can Trust Fraud Be Proven in Court?

Trust fraud, or constructive fraud, can happen when the trustee breaches this duty and uses trust assets for himself. In Missouri, the hallmarks of a claim for breach of fiduciary duty are:

  • The defendant owed a fiduciary duty to the plaintiff.
  • The defendant breached it.
  • That breach caused harm.
  • That harm is documented.

A Missouri breach of fiduciary duty claim must show proof by clear, cogent, and convincing evidence that it took place. The plaintiff generally has the burden of proof, but that can shift to the defendant if a trustee had a personal interest in a transaction involving a trust asset (like taking money from the trust for their personal use). Due to legal and factual complications in these cases, you are better served by a trust fraud attorney than by trying to handle these issues yourself.

Can Someone Steal Your Trust Fund? A Dishonest Trustee Can Commit Trust Embezzlement.

The trustee may have the authority to handle assets in many ways. It is possible that someone can steal your trust fund because that access provides the opportunity for theft. If a trustee improperly uses trust assets for their benefit, it can also be called trust embezzlement. That happens when someone possesses someone else’s property due to their role or position and breaches the owner’s trust by using it for their personal gain. If you believe there is embezzlement of your trust, don’t wait to get help. Contact our experienced trust fraud attorney at Birk Law Firm. Call us today at 573-332-8585.

What Can I Be Awarded in a Trust Fraud Case?

If a claim is successful, you may get many types of damages and/or the judge may order the trustee to take certain acts:

  • You may get your losses paid for.
  • Punitive damages may be received if clear and convincing evidence shows the defendant’s evil motive or reckless indifference to the plaintiff’s rights. This is to punish the defendant and discourage it and others from doing the same thing in the future.
  • A judge may order your attorney’s fees and court costs be paid by the trustee. The judge may do so as justice and fairness require.

In Missouri, if these monetary damages are inadequate, you can ask for equitable relief (that some action be taken), including:

  • A declaratory judgment stating that the defendant engaged in trust fraud
  • For the trustee to be suspended or removed
  • That the trustee perform an accounting showing what happened to the trust assets, where money was spent, who got it, and why
  • The legal title to misused property would go back to the trust or the beneficiary so the trustee wouldn’t benefit from it
  • The trustee must give back profits or fees received because of the breach of fiduciary duty.

The beneficiary has five years from the date of the breach and its discovery in which to file a lawsuit.

What’s the Penalty for Stealing from a Trust?

If the trustee breached their duties, they would have to pay back what they took, out of their own money and/or assets. Usually, a trustee can use trust assets to pay an attorney to defend themselves in trust-related litigation. If fraud is found, a judge may require the trustee to pay the legal fees and court costs.

What Other Claims Could There Be in a Trust Fraud Case?

Depending on the facts of the case, if trust fraud happens, there may be many other types of legal claims against the trustee. Because of the fiduciary duties, a claim based on a breach of those duties is usually the easiest to prove, but other civil action claims can include:

  • Fraud: Your reliance on an intentionally false statement harmed you.
  • Conversion: Using property without a legal right to do so.
  • Unjust enrichment: Benefitting from something without the right to do so.
  • Negligence: Serious mistakes were made despite the duty to the beneficiary, and harm was caused.

The trustee may have also committed crimes while engaging in fraud. In that case, our trust fraud attorney may provide evidence to law enforcement so they can investigate the matter.

Our Trust Embezzlement Attorney Can Help You Set Things Right

Issues involving trusts can be simple or very complex. If a trustee abuses their position, it’s best to get a trust embezzlement attorney familiar with a trust’s legal and practical issues. Fraud may or may not be happening. The beneficiary may not get all they thought they were entitled to, but it may be that their expectations aren’t justified. The trustee may be disorganized or incompetent, not intentionally taking from the trust.

Trust fraud attorney Kelvin Birk is also a CPA, and he provides estate planning services. When you turn to Kelvin Birk for help, you get the skill sets and experience of two professions. He can protect your rights and interests, whether you’re a trustee or beneficiary. Call our team today at 573-332-8585.


Why Choose Birk Law?

Birk Law Firm is a small firm by choice that is big on client services. Attorney Kelvin Birk and his team are responsive to their clients’ needs. When we sign on as your law firm, you can count on us for strong legal counsel, from negotiations to settlement to trial.

Cape Girardeau Law Firm Kelvin BirkOur clients benefit from the intertwining of Kelvin Birk’s legal and CPA background and experience. We provide well-rounded advice to solve both legal and financial issues and to come up with creative solutions. We use modern technology to deliver legal services in a more efficient and client-focused manner than was previously possible.

We provide personalized and compassionate service. We believe that each client’s matter is the most important matter in the world to them, and we strive to treat it that way.


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