Cape Girardeau Trust Fraud Lawyer

The word “trust” has many meanings. As a noun, it means 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 own benefit, they violate the trust’s terms and the trust others have in them. These actions give a beneficiary a chance to sue the trustee. If you suspect trustee embezzlement, you need to hire a trust fraud attorney.

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 vary in complexity from quite simple to extremely complicated. They can be funded with minimal assets, substantial wealth, or in the future through your will. Regardless, all share these traits:

  • 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.

Because it is a legal document, every trust should be drafted by an experienced trust attorney to ensure that the court will uphold it.

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 responsibility is 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) should carefully choose a trustee to avoid the risk that the trustee will engage in 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.

Why Choose Birk Law for Trust Fraud

Kelvin Birk stands apart from other lawyers. Not only does he have over 30 years of legal experience, but he also worked as a CPA. This means that he understands more than just financial law. He is intimately familiar with accounting techniques and the ways people try to commit fraud with them. This combination of skills is ideal for investigating, preventing, and correcting fraud.

Experience and skill are only half of the equation that makes Birk Law Firm the place you want to go for trust fraud cases. You also benefit from personalized service. Our law firm is small by choice. We prefer to give our full attention to all clients rather than spreading cases among multiple attorneys. This means that you know you’re getting the full value of what you’re paying for.

If you want an efficient, technologically savvy lawyer who gives his full attention to every client, choose Birk Law Firm. You deserve to be treated fairly, and that’s how we treat all our clients.

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, beneficiaries might not even be aware of what’s happening. Money a trustee embezzled from a trust can be hidden with creative accounting, especially if the trust doesn’t have any safeguards. 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 be entitled to several types of damages. The judge may order the trustee to:

  • Reimburse your losses and replace any money taken from the trust
  • Pay your attorney’s fees and court costs, especially if they are significant
  • Pay punitive damages as punishment for recklessly harming you and other trustees and to discourage them from taking similar actions in the future.

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
  • For the trustee to perform an accounting showing what happened to the trust assets, where money was spent, who got it, and why
  • For the legal title of the misused property to go back to the trust or the beneficiary so the trustee no longer benefits from it
  • That the trustee gives back profits or fees received due to 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 must pay back what they took, using 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 will usually 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, the trustee may face additional legal peril. 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: when your reliance on an intentionally false statement harmed you
  • Conversion: when property is used without a legal right to do so
  • Unjust enrichment: when someone benefits from something without the right to do so
  • Negligence: when serious mistakes are made despite the duty to the beneficiary and harm is caused

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


When your money is on the line, you want to understand how it is being managed and protected. Here are some of the more common questions we receive at our law firm.

Does a trustee have to be a lawyer?

No, but it helps if a trustee has some legal experience. If they don’t, they should consult with an estate attorney regularly.

If I suspect trust embezzlement, can I do something to stop it?

Yes. A fraud attorney can file a motion with the court to have the trustee temporarily removed or have someone assigned to monitor their activities. Either should prevent ongoing embezzlement.

Will I get all my money back?

The court will try to get all your money back, including interest and potential earnings that were lost.

Will a new trustee be assigned?

Yes, most likely. If a trustee has been found guilty of trust embezzlement, a judge will almost always assign a new trustee to take their place. The settlor will probably decide who if they are still around, but you may also have a say in who is assigned.

How do corrupt trustees hide money?

Most finances are digital these days. Someone who understands financial technology can hide assets, making them hard to find. Thankfully, Kelvin Birk understands that technology and can uncover those assets.

If you have any other questions, just ask. We’re always willing to discuss your queries and concerns.

Our Trust Embezzlement Attorney Will Help You Set Things Right

Because trust law is very complicated, when a trustee abuses their position, it’s best to get a trust embezzlement attorney familiar with the trust’s legal and practical issues. An experienced attorney who is familiar with the details of your trust will quickly investigate the evidence and identify all fraudulent actions. Whether the trustee is dishonest or just incompetent, a trust lawyer can quickly start to correct their actions so that the harm doesn’t continue.

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 a 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.


Contact Kelvin Birk