California Trusts Legal Questions

I assume your sister and you own the property 50/50.  Typically, you would sell her your 50% interest by her giving you a note and deed of trust.  The deed of trust could include 100% of the property, but more typically it would only be for the 50% interest that you are selling her; it needs to be recorded.  The promissory note should detail the payments to be made.  When she pays off the note, you can give it and the deed of trust back to her.  On that deed of trust there is typically printed a request for reconveyance, which you will need to sign and present to the trustee (typically a title company). If you and your sister are on good terms, and you trust her, you can simply take an unsecured promissory note from her.  That avoids the cost of recording the deed of trust and the reconveyance fee.... Read More

Whoever is in possession of the original will is supposed to file it with the court clerk for safekeeping within 60 days following the testatrix's death.  Many don't do it, and there's really no penalty for not doing so unless someone complains (and even then I'm not certain anything will happen other than the court ordering the person to file the will).  But if your mom had a revocable trust, it is possible (perhaps even likely) that no further court action will be needed.  If your brother is trustee of that trust, he is supposed to give all beneficiaries notice of their right to see the trust.  Again, the timing is 60 days.  Your recourse if he fails to do so is to file a petition with the Probate Court.... Read More

I assume we are talking about a revocable trust of the person you have called "the owner of the trust."  If he dies with insufficient assets to make all distributions, you first need to read the trust to see if it addresses this situation.  If there is no specific gift of the home, you very well may be required to sell the home in order to pay debts and make dictributions.  One of the surviving occupants may be the one who buys the home....  ... Read More

I generally advise the spouse as primary and the trust as contingent. However, there are instances (elderly people) that it makes more sense to just name the trust as the primary. I should add that the selection of beneficiaries for IRAs, 401ks and other retirement plans is much more complicated as there are tax issues to consider.  Good luck. -John... Read More

Many trusts will have provisions for the adult beneficiaries to name successor trustees.  See if your mom's trust has such a provision.  Other trusts permit a trustee to name his successor.  If the resigning trustee is capable of doing that, have him name you as the trustee.  You will need to do this in the manner required by the trust instrument. If the trust has no such provision, you will need to petition the court to have a trustee appointed.... Read More

In California, if you own real estate you will need a Trust in order to avoid Probate for your heirs.  By having a Trust prepared (and a Pour-over Will) you will assure that your daughter will inherit the home without the substantial cost and time of a Probate. You may also need the Powers of Attorney (for financial and healthcare) which will appoint someone to handle these issues if you were to become incapacitated and not able to make these decisions for yourself. It would be wise to speak with an Estate Planning Attorney to go over your specific situation and make sure that your wishes are followed.... Read More

It is very common to do buyouts in trust and estate cases.  The assets are often valued by experts (appraisers) to make sure everybody gets treated fairly. However, the actual valuations are by agreement so you do not have to agree to the appraisers valuation. Typically a written "distribution agreement" is prepared to show what everybody is getting.... Read More

The person who is responsible for distributing assets from a trust is called the "Trustee."  The Trustee is required to distribute assets in accordance with the terms of the trust.  The Trustee is also reponsible for managing those assets until they are distributed.  Very often, the person who makes a trust (known as the "Settlor" or "Grantor" or "Trustor" - here your mother) will not specify specific asserts to go to specific beneficiaries; instead, the Settlor will trust the Trustee to make the choice and to give the beneficiaries their shares based upon asset value.  Or the trust may permit the Trustee to sell asserts and just distribute cash.  The Trust may put limits on what the Trustee can and cannot do, but in my experience this is not often done.  The law does require the Trustee to act fairly and in the best interest of the beneficiaries - two of the Trustee's "fiduciary duties." The law does not require the Trustee to consult with the beneficiaries concerning their preferences, but in my opinion, and to avoid problems, it is usually prudent for the Trustee to do so.... Read More

Some trusts will permit a trustee to appoint a co-trustee to serve with him or her.  Normally, if there was just one "settlor" (person who made the trust), and that trust is to continue on after the person dies, the trust will become irrevocvable and non-amendable at that time.  If there is no provision in the trust for the trustee to appoint a co-trustee, and the trustee does not want to do it alone, the trustee may resign and let the next successor trustee take over.  If there is no successor trustee named in the trust, you would need to file a court petition to have a trustee appointed. ... Read More

Probate takes 7 months minimum from start to finish. Thus the fact that the house sold two months ago is not necessarily grounds for concern. However, I would need to know more details to speak with assuredness. For example, is the executor trustworthy? Is the money in a secure account? Is there a bond in place?  Those relate to the security of the money. Then, for when probate should end, I would need to know when letters issued, when creditors were put on notice, if taxes have been paid, etc....  These and many other questions are what would help an attorney evaluate your specific situation. Good luck. -John... Read More

If you know the name of the lawyer who helped set up the trust, I would give him or her a call. Realize, however, that the attorney is ethically bound not to divulge confidences between the attoeney and the client; however, a client will often have provided in the client's estate planning documentation for successor agents and successor trustees to take effect when the client becomes incapable of handling her own affairs.  Those documents will often define the standard of competency for this purpose, and name the persons responsible for determining this. You will not be able to coerce your mother into doing anything she doesn't want to do unless you get the courts involved.  I would avoid this court involvement if at all possible - it is a last resort.   Realize that if your mother is competent, she may decide that you are "at war" with her and she might remove you as a beneficiary and as a fiduciary. Having gone to three different psychologists, can they suggest anything for her benefit?  They also have ethical responsibilities, so unless you have a health care directive and waiver of HIPAA rights from your mother these professionals may also have a difficult time speaking with you - another reason to try to contact your mother's attorney first (if asking your mother directly does not work). Does your mother have anyone she trusts?  Can that person be contacted for assistance?  If she has a religious life, perhaps a minister, priest, or rabbi?... Read More

If you admit that you were "estranged" from your father, isn't it rational that your father would have wanted his uncle to get the property rather than you?  As long as he was competent and not under undue influence when he gave your great uncle the deed, he could do that.  Since this involves Texas property, you should post this question for a Texas lawyer to respond.... Read More

Bank of America cannot grab assets unless it has a security interest in the assets or obtains a judgment against you.  It cannot grab your personal assets for debts owned solely by the corporation (unless you have failed to keep corporate formalities).  If you dissolved the corporation, the Bank of America can only seek payment of the value which you received from the corporation when it dissolved.... Read More

A living trust is typically a great idea for anybody that owns any real estate in California OR has other assets exceeding $150,000 OR a person who desires an organized "place" to control their assets. I encourage you to find an experienced California estate planning attorney to get this work done for you!... Read More

I have never heard of a revocable QPRT. If it were revocable it wouldn't qualify as a QPRT under IRS rules. There are other trusts, that can retain personal residences, which are revocable. However, they would not qualify as a QPRT.  A QPRT can be nullified in some cases.  A lot depends on the facts. Typically Court approval would be required and this would likely cost several thousand in attorney fees assuming nobody objects. Good luck.... Read More

Your recourse is to file a petition with the probate court.  You have a number of rights, and from what you say here the trustee is violating many of them.  You (assuming you are a beneficiary) should seek an accounting, remove her as trustee, and seek damages for any loss incurred by the trust.  If you don't have a lawyer already, you might want to check with the lawyer referral service of the bar association nearest where the trust is being administered (the trustee's address).... Read More

With a million dollars at stake, and nothing to lose, the two grandchildren will have great incentives to challenge whatever is done.  As a practical matter (and assuming you don't want to face a court battle when grandma dies), you should fully document this amendment. Do a formal amendment or - better yet - have grandma completely restate the trust so the prior $500,000 gifts don't even appear in the document. Be ready to prove that grandma acted of her own free will, was not unduly influenced by anyone, and had full mental capacity to do what she is doing.  If there is any doubt about these things, get an expert's opinion and do it now.  If grandma is able, she should contact her lawyer directly (and not through your aunt or your mother), and meet with her lawyer alone. If there is some reason that grandma wants to leave the grandchildren nothing, when she had been so generous before, consider having grandma write down those reasons.  (Note, however, that grandma could demonstrate her lack of capacity - if that is a potential issue - by doing so.) Consider leaving the grandchildren something - say $50,000 each - and provide a no-contest provision so that they have something to lose if their contest fails.... Read More

I assume that the surviving brother was the successor trustee and was able to deed the property to himself.  I also assume that the trust did not give the house to whichever brother died last, and that the trust had no "powers of appointment" that could be exercised in favor of specific grandchildren.  If my assumptions are correct, it sounds like you have a breach of trust by the surviving brother in his fiduciary capacity as trustee.  This wrongful conduct can be the subject of a petition to the probate court in the county in which the surviving brother lives (where the trust is being administered).... Read More