What kind of lawyer do I need, if any?
January 16, 2011 1:46 PM   Subscribe

What kind of lawyer do I need, if any? Suing father for ownership of a custodial (UTMA) account.

Negotiations have broken down, so I'm planning to sue my father for control of a custodial (UGMA) account created in my name. I'm in California, the account was created in Virginia where he resides. Questions:
  1. Do I even need a lawyer, or is this something where I can represent myself? Per the law, it sounds like all I'd be doing is asking that my father honor the age of majority in Virginia (21; I'm 25). I don't see any other stipulations, but if it were this simple, the law would just require that banks turn over the account to the child (I would think), so I'm guessing there's more to it.
  2. If I need a lawyer, what kind of specialization should I seek? And about how much might it cost? Hundreds, thousands?
posted by mnemonic to Law & Government (15 answers total)
Best answer: You need to talk with someone who specializes in trust and estates. They can point you the right direction.
posted by dws at 1:52 PM on January 16, 2011 [1 favorite]

Best answer: At this point, it looks like an attorney will be the only person who can get your father's attention, as your efforts have failed. The only other non-attorney option I can think of probably wouldn't get you very far. I suppose you could try filing a police report, since your father has your property and refuses to give it to you, but I'm not confident that the police would get involved in what they may see as a family/civil dispute.

You should look for an attorney experienced in trusts and estates. The cost of this process is going to depend on a number of factors, including: 1) whether your father drained the account and you have to sue him to get the money back; 2) whether your father has any legal grounds for refusing to turn it over (this is not my area of expertise so I can't tell you that); and 3) how long and hard you and/or your father decide to fight.
posted by slmorri at 1:56 PM on January 16, 2011 [1 favorite]

I should also say that I'm sorry to hear that you're having to go through this. I went into automatic lawyer mode and forgot to put on my empathy cap.
posted by slmorri at 1:57 PM on January 16, 2011 [1 favorite]

if it were this simple, the law would just require that banks turn over the account to the child (I would think), so I'm guessing there's more to it

IANAL, but I assume the law is written that way because of the possibility that the gift is not necessarily in a bank account. Like, it could be a car or real-estate or artwork or something. ยง31-45 alludes to this.

Out of curiosity, have you talked directly to the bank about what kind of documentation or legal action or whatever they would need to simply transfer the ownership of the account to you? Dunno how helpful they can be, but if you're already at the point of hiring a lawyer, it can't hurt.
posted by hattifattener at 3:08 PM on January 16, 2011

Lawyer? I would start by contacting the financial institution where the account is located and asking for an accounting of the funds and withdrawal. A lawyer practicing in this area, or a banker, can more definitively answer this but my lay understanding is that those funds are yours as of 21 and your father no longer has any say. At best, the statements go to him. It is possible that some other form of trust was set up in which ownership does not transfer to you at the age of 21. If so the financial institution should tell you. If they are your funds the financial institution cannot deny you and if they do it is trouble for them.
posted by caddis at 3:08 PM on January 16, 2011

Have you contacted the bank or broker who manages the account and requested turnover? If so, what reasons are they giving for not complying? The custodianship legally terminated when you reached the age of majority.

The MeFite lawyers can correct me if this is wrong, but you should be able to contact the bank or broker directly and request that the monies in the account be turned over to you. Here's an example of a transfer request [pdf]. Note these words: I hereby attest that I have attained the age of termination for the state in which the UGMA or UTMA was established, the custodianship has therefore terminated, and I have a present and absolute interest in and to all assets of this account.

Here's an explanation of UGMA accounts that explains that you have a legal right to the account regardless of your father's wishes:

...when the minor reaches the age at which the UGMA becomes property of the minor (who is either 18 or 21 depending on the state and not a minor any loger), the minor can claim all of the funds even if that's against the custodian's wishes. Neither the donor nor the custodian can place any conditions on those funds once the minor becomes an adult.

There are some serious legal consequences for whoever is preventing the turnover:

...if the custodian fails to turn over money that is due to the UGMA beneficiary, he or she breaches the statutory trust terms and is liable for the consequences of that failure, just as any other trustee would be, which may include surcharges and other sanctions from a court.
posted by amyms at 3:12 PM on January 16, 2011 [2 favorites]

Response by poster: I had already contacted the bank maintaining the account. They said that without my father's cooperation or a court order, they can't transfer the account or even tell me what's in it. I do know its value exceeds $30,000 at this time (it's a stock portfolio). The bank rep was aware I was over the age of the majority, and said he couldn't do anything about it without a court order.
posted by mnemonic at 3:25 PM on January 16, 2011

I would definitely start by going to the bank before getting a lawyer. If it's a national bank with branches in your area, even better. Go to a branch (perhaps one of the larger ones in your area would be best) and ask to speak to a banker regarding a transfer of a UTMA. Tell them you have an account, you're 25 now, and would like access to the funds. If there aren't any branches in your area, do the same thing in a letter and include proof of your age (e.g. birth certificate).

Otherwise, many lawyers will give you a free consultation, which should help you to figure out what will be involved and what this is going to cost. Don't be afraid to talk to a couple.
posted by zachlipton at 3:32 PM on January 16, 2011

Does the bank have branches in CA? The reason I ask is that it might be cheaper to hire a CA lawyer and get the court order in CA then trying to find one in VA.
posted by delmoi at 3:51 PM on January 16, 2011

Response by poster: No, the bank doesn't have branches in California. It's USAA which is basically an online bank.
posted by mnemonic at 3:54 PM on January 16, 2011

The age of majority is 18, not 21, in all states.

Instead of the language suggested by amyms, I suggest:

"I am now over the age of 18, and the custodianship has ended. Please forward the money to me at the above address."

You can pursue legal action in California, since USAA does business there, even without physical branches. You do not have to go to Virginia.

You could try to contact the bank's legal department. If that does not work, see an estate planning lawyer in your area.
posted by yclipse at 6:14 PM on January 16, 2011

yclipse, the "age of termination" is a specific legal term for the purposes of UGMA accounts (and other types of custodianships and trusts). It is 18 in some states and 21 others, but that's a moot point because the OP is currently 25.

mnemonic, before you spend money on a lawyer, try contacting the bank again and go over the head of whoever you talked to before, as that person was clearly in the wrong. If they still refuse to comply with your requests, then be sure to ask your eventual lawyer to sue the bank as well as your father.
posted by amyms at 8:03 PM on January 16, 2011

Oh, and be sure to tell USAA that not only are they flagrantly disregarding their fiduciary duty to the account's legal owner (you), they are also contradicting their very own website:

USAA's page of information on UGMA accounts states: Gifts to the child are irrevocable and The child receives legal control of the assets generally at age 18 or 21, depending on the state, and can spend the money as he or she wishes.

There is no requirement for a court order. The money automatically came under your legal control at age 21.

Do you have your own bank in California (I don't mean USAA, I mean your own bank where you have a checking or savings account)? If so, go talk to your own banker, tell them you have a UGMA account and you wish to transfer your funds to your current bank. They might have all the official paperwork you need, and they might be able to send your request to USAA under their own letterhead.
posted by amyms at 8:35 PM on January 16, 2011

Excellent idea amyms. The CA bank will likely be seen as more authoritative to the VA bank than mnemonic, will know how to speak the right language to the VA bankers and will be knowledgeable in the relevant laws. Since this is more than $30k rather than a regular bank in CA you might find a stock broker more helpful if only just for their generally higher level of personal customer service.

One of the first questions you might want to ask the bank in VA though is if this is really an UGMA. If it is it would seem all the previous info about your ownership of this is spot on. However, there are forms of trusts which can be created in which the legal rights do not pass to you at some statutory age. An UGMA is just a simple way of accomplishing what people do with trusts, but UGMAs come with certain limitations, like the minor getting ownership of all the funds at a certain age, that can be avoided with a trust. Unless you already know for a fact that this is an UGMA then I would suspect that this may be something else. Banks do not usually get this sort of thing wrong, unless the person you spoke to is a friend of your father and trying to dissuade you for your father's benefit. Other potential avenues to pursue include state banking regulators in VA and a letter to USAA's general counsel. The general counsel will not answer your letter personally but it will likely get forwarded to someone who can provide you with some answers. I would start with amyms idea though.
posted by caddis at 8:27 AM on January 17, 2011

Response by poster: I'll talk to the bank again today. It is a UGMA though, I have a 1099-DIV form stating such.
posted by mnemonic at 11:42 AM on January 17, 2011

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