COMES NOW XXXXX XXXXX and XXXX XXXXXX and state to the court as follows:
1. The actions of the trustee did not inure to the benefit of these beneficiaries and no portion of the fee to be paid to the trustee, if any, should come from their share.
2. The trustee did not take part in any of the litigated matters and it should not be compensated for any such actions.
3. The trustee breached fiduciary duty with respect to these beneficiaries in that it did not pay attention to the funding formula of the trust and allowed a travesty of justice to take place on their watch.
4. The trustee invested in proprietary funds of US Bank and made profit from the manner in which it invested funds of the trust. In this manner, it is guilty of self-dealing and a breach of fiduciary duty. Such cost should be subtracted from the fees, if any, to be allowed to the trustee.
5. The rate of return for the assets in the trust was far below what the trustee should have been able to obtain for the beneficiaries of this trust. In this respect the Trustee breached fiduciary duty.
6. The trustee should be liable for any fees charged by their attorney in that none of his work inured to the benefit of these beneficiaries. Further there is no itemization of time for the services cited and this denies the court the opportunity to independently evaluate the propriety of the cost of such services to the beneficiaries.
7. There was no agreement by these beneficiaries to pay US Bank according to a schedule of fees created after the acceptance of the trust, and fees, if any, should be calculated based upon benefit generated for the beneficiaries, not on some self-serving schedule based on assets under management.
8. The accounting attached to the final report is prolix and confusing. It is not fairly representative of the results of the trustee's work, nor is it in a form that is reasonably comprehensible by the beneficiaries. The Trustee should be required to present the results of the trust in a manner that is comprehensible and which allows the court to judge the results of its stewardship. In this sense the Trustee has breached its fiduciary duty to report to the beneficiaries of the trust.
9. These beneficiaries believe that a number of hours will be required for hearing on the issues presented by this final report and that the issues cannot be adequately considered on a Court Service day. Additionally these beneficiaries would like to depose the trustee for purposes of this hearing and final report.
10. These beneficiaries need additional time to review a detailed and proper account to determine whether they wish to pursue a breach of fiduciary duty action against this trustee.
WHEREFORE, these beneficiaries pray that the final report as filed not be approved, that the hearing on this matter be set for hearing by the court administrator, and that the Trustee be required to recast its final report in a comprehensible and clear manner.
Attorney for XXXXX and XXXXX