California Trusts Legal Questions

The "best" answer" depends, in large measure, on what the trust says and how well you and your siblings get along with each other.  If you get along well, it may be possible to modify the trust terms, as necessary, to accomplish your objectives.  Alternatively, you might explore the possibilty of forming a business entity (corporation or limited liability company) to purchase the studio.  What does the trust say about a sale of the business?  The new business entity could provide ownership interests for your two siblings.  That is just one possibilty - there are undoubtedly others.... Read More

I am sorry for your loss.  Most trustee duties are optional but encouraged. For example, the law does not require you put the beneficiaries on notice when you sell real estate, in a trust, but I always advise clients to do so. Having said that some things are mandatory. For example, trust notice shall be given pursuant to California probate code 16061.7.  Additionally, it may not be mandatory but certainly adviseable to file parent-child transfer forms on real estate, BEFORE selling, to avoid a supplemental property tax and always within 3 years of death even if keeping the property. I hope this helps. Good luck. -John... Read More

Hi, She could certainly file a lawsuit, but I can't tell you whether it would have any merit without seeing the estate docs. Given the fact that your Mom just passed away, you definitely have a reasonable amount of time to liquidate the assets of the estate prior to providing an accounting and distributing funds to the beneficiaries. Feel free to give me a call or shoot me an email if you would like to discuss the situation. I have handled many probate litigation matters and bill at a substantially lower hourly rate. Thanks,Jon... Read More

Since your mother died in Texas as a Texas resident, Texas law will apply.  You may want to ask this question of a Texas lawyer. In California (and perhaps in all states) adopted persons are treated exactly the same as natural born children.  Also, powers of attorney die with the person giving the power, so your uncle no longer has the power granted to him under that power of attorney.  The trust governs how assets held in trust are to be distributed - so whoever is the successor trustee must "divide everything" as provided in the trust.... Read More

I would say $10,000 OR 25% would be more typical than both. That is, an attorney wants to receive compensation and thus they often will agree to an hourly representation (where the $10,000 would come into play) or a contingency fee (where the 25% would come into play).  If they are asking for both then I would imagine the facts of the case are not real strong. I would encourage you to get a second or third opinion just to make sure you are in the right fee range. It's hard to know without more facts. Plus, remember different attorneys can charge greatly different amounts and that doesn't mean one is a "better deal" than the other. Things like experience and credentials are worth A LOT of money in most cases. Good luck to you.  -John... Read More

Typically, a special needs trust is useful for avoiding "means testing" issues for public assistance.  The trust can only be used for "special needs" that are not provided by public assistnace but which do not disqualify the beneficiary for the same public assistance.  If the beneficiary is able to withdraw money for other purposes (such as for making gifts) the trust would most likely disqualify the beneficiary from receiving public assistance.  Therefore, it is unlikely that the trust will permit such things to happen.... Read More

My assumption is that you are one of the beneficiaries? The executor owes a number of duties to the benficiaries, including the duty to account and should therefore be transparent regarding the estate. You may very well want to consider a lawsuit to remove the executor from her position. I would need more details to know if that is the route I would recommend for sure, but based upon what you have told me, it certainly seems like an option. Thanks,Jon... Read More

The first question I would have is whether the individual still has the mental competency to transfer their property? If they do then there are steps that can be taken to protect the property. One thing to consider is that their is a "claw back" period (I believe it is three years) where medi-cal can go after the property that was transferred, so if the individual passes away within that time the transfers might be set aside.  Thanks, Jon... Read More

It's tough to say for sure. The law, these days, tries to ascertain the decedent's true intent. Thus even though a document without two witnesses likely does not meet the legal requirements of a will (unless in the decedent's own handwriting) it's possible that it could be honored. I would encourage you to review both wills with an estate attorney. If there is possible litigation then you might want to hire a local attorney. If no litigation is likely then an attorney anywhere in the state can handle it.... Read More

Hi, Sounds like a difficult situation. Your best option is probably to file an action in probate court seeking the trustee's removeal. If your Dad's welfare is in immediate jeopardy you could file an ex parte application concurrently with your lawsuit in an effort to get the court to make an order quickly. I have handled many of these types of lawsuits, on some occasions representing the parties seeking the trustee's removal and in other cases defending the trustee and would be happy to discuss your options with you. Thanks, Jon... Read More

Hi, Typically the main responsibility of the trustee in a family situation such as this is to collect all of the assets of the estate and distribute them upon the death of the settlor. The trustee is also typically required to provide an accounting to all of the beneficiaries. When did your mom pass away? Did she have any assets? If so, what if anything has your brother in law told you? I have handled many cases involving similar facts and I would be happy to discuss your rights and options that you may have. Hopefully in this case your brother in law is just not doing a very good job communicating and intends to do the right thing. Thanks, Jon... Read More

Do you already own an interest in the business, or is your mom transferring her interest to you?  If she is making a gift to you, she could consider making the gift in trust (an irrevocable trust) rather than outright.  If you already own the business interest, you might want to put it in a revocable trust.  In any event, this property is your separate property and will remain so unless you commingle it with her property or your community property.  You need to keep it separate from your other assets.  This means that any earnings from it need to be kept in a separate bank account (unless you intend to make a gift to your wife); you should not pay any debts related to it from your community property (which would include earnings from your employment).... Read More

The retirement account designation of beneficiaries stands alone.  If you are named as the beneficiary, then you don't have to divide it up with anyone else (unless you want to do so).  You could also qualify for a "rollover" to an "inherited IRA."  You could then take money out and not pay tax until you do so.... Read More

Cars are typically not a problem as the California DMV has very easy forms to fill out 40 days after death. Just make sure your husband's will specifies who gets the cars at his death (presumably you). To make it easier he might want to add you on the pink slip though! Then you don't have to wait 40 days after death to transfer them. The bottom line is that there is no need to transfer them to your trust. ... Read More