QUESTION
Can we file an Ex Parte Motion to have the trust removed and save the home?
Asked on Sep 19th, 2012 on Estate Planning - California
More details to this question:
I represent a client in a real estate finance transaction. The client had a special needs trust that ended two years ago when she turned 21. At that time, the Trustee (her foster mother) was supposed to distribute the assets of the trust (a home) back to my client. It never happened. Now, the home is in danger of being foreclosed unless we can refinance to cure back property taxes. The problem is the trust is still on title. When I located the Trustee through a relative, she said that she wanted nothing more to do with her foster daughter and refused to honor her fiduciary and legal obligation to my client. The terms of the trust ended years ago. Not sure if we need another Trustee or Just get the trust of title
13 ANSWERS
3 Awards
A Motion like you are describing needs to be noticed and served to all parties, this it can probably not be done ex parte. You really need to address the specifics with an attorney who can not only advise you on the State law but local rules associated with the specific court. In Nevada you would need the court to take jurisdiction of the trust before it could take any action. You did not address whether the trust is already under the jurisdiction of the courts or if the trust provides a provision on steps to remove a trustee. These are all important questions that needs to be asked of an attorney who has first had an opportunity to review the trust.
Answered on Jun 27th, 2013 at 9:37 PM
Business Law Attorney serving Bingham Farms, MI
at
James T. Weiner, P.C.
Update Your Profile
The heir needs to file a lawsuit in the County Probate court to officially remove the trustee and distribute the assets.Contact an attorney..unfortunately this may take a some time.. probably a mimimum of 60 days and more likely up to 180 days or more.
Answered on Sep 24th, 2012 at 11:15 PM
Thomas Edward Gates
The trust document should identify an alternate trustee. You will need one to sign for the trust to transfer the title.
Answered on Sep 24th, 2012 at 9:13 PM
Probate Attorney serving Newport, OR
at
Minor, Bandonis & Haggerty P.C.
Update Your Profile
Petition the court to name a new trustee and/or amend the trust.
Answered on Sep 24th, 2012 at 7:52 PM
Trusts Attorney serving Sacramento, CA
at
Law Office of Victor Waid
Update Your Profile
You will need to file a noticed motion/petition with the probate court based upon declarations, to terminate the trust and clear title for your client, with notice to all relevant parties that may be affected by the petition request. If the taxes on the are in arrears on the property, then your client should pay them current to forestall the foreclosure for lack of tax payment. I would suggest you obtain the services of a probate lawyer to assist you.
Answered on Sep 21st, 2012 at 1:45 PM
Business Attorney serving Riverside, CA
at
Berger and Raphael, LLP
Update Your Profile
Yes. A motion to set aside the trust and convey the property to your client should be filed with the court. This should be done immediately.
Answered on Sep 21st, 2012 at 1:44 PM
Elder Law Attorney serving Ithaca, NY
at
Robin Abrahamson Masson Attorney & Counselor at Law
Update Your Profile
You'll need to bring an action in Surrogate's Court to remove the trustee and replace her with another who will comply with her obligations. The new trustee can then do a deed to the beneficiary. You will need an attorney who is familiar with Trusts & Estates work, as well as real estate. Once that attorney is hired, s/he can talk to the county and try to forestall the foreclosure while everything is worked out.
Answered on Sep 21st, 2012 at 1:36 PM
Neal Michael Rimer
The beneficiary needs to retain local counsel. It seems that the trustee may have breached their fiduciary duty by not paying the taxes. You probably need a trustee to handle the matters within the trust and also to perhaps sue the prior trustee. It is usually the Trustee that transfers property to a beneficiary at the appropriate time. In the event of a sale of the property for taxes, the "owner" has the right of redemption for a period of 1 year. Therefore the property can be reacquired. The Trust is capable of borrowing money, but it is the Trustee that would execute all documents. After retaining an attorney and that attorney reviewing all the documents and the situation, the beneficiary should get a more clear direction of what to do to protect her interests.
Answered on Sep 21st, 2012 at 1:36 PM
Appellate Attorney serving Grosse Pointe Farms, MI
at
Musilli Brennan Associates, PLLC
Update Your Profile
You need an attorney, and an order either ending the trust or allowing a new trustee to do what is necessary to preserve the assets
Answered on Sep 21st, 2012 at 1:34 PM
Litigation Attorney serving St. Louis, MO
at
Probate Law Center Richard J. Keyes, PC
Update Your Profile
You need to get the trustee to resign and the successor trustee to take over. Read through the trust and there should be a paragraph or article in there about how the trustee is to resign and who is to take over. If the trustee refuses to resign, then the beneficiary or beneficiaries have a right to bring a cause of action in court against her for her removal as trustee. You cannot file an ex parte motion. Ex parte means without notice and you have to give the trustee notice that you are trying to remove her as trustee.
Answered on Sep 21st, 2012 at 1:33 PM
Alternative Dispute Resolution Attorney serving Baltimore, MD
at
Whiteford, Taylor & Preston L.L.P.
Update Your Profile
You could petition the circuit court to remove the current trustee (and appoint a successor trustee if that isn't provided for in the trust document), and then the successor trustee could distribute the trust assets to the beneficiary.
Answered on Sep 21st, 2012 at 1:33 PM
General Practice Attorney serving Glendale, CA
at
Law Office of Michael Stafford
Update Your Profile
You need to petition the probate court to relieve the current trustee of her position due to failing to act and breach of duty and have a new trustee appointed to carry out the terms of the trust.
Answered on Sep 21st, 2012 at 1:29 PM
Elder Law Attorney serving Hollister, CA
at
Charles R. Perry
Update Your Profile
You need to contact an attorney who handles trust litigation ASAP. The trustee has fiduciary obligations to the beneficiary, so long as the trust still has property that has not been distributed. The trustee also may well have liability for the loss of the home due to her failure to exercise due care and distribute that property in a timely fashion and/or pay the property taxes. I do not currently believe that a court is likely to order an ex parte distribution of the property. It also is unlikely that it will order an ex parte change of trustees. There may, however, be other solutions. The beneficiary needs the distribution of the property, among other things, and needs the current trustee to honor her obligations. A letter from a lawyer may focus the current trustee on what she must do. A review of the trust is required before commenting on the procedure for changing trustees.
Answered on Sep 21st, 2012 at 1:29 PM