California Trusts Legal Questions

A no contest clause is an essential part of most any will or trust. It's rare that one would not be included. However, it doesn't fully prevent someone from "contesting."  That is, there are things that a person can be due that are really contesting a trust but not legally considered contesting.  However, those are normally if there was a possibility of wrong doing in the set up of the trust (i.e. lack of capacity or undue influence).  The key with any estate plan is to hire an experienced estate planning attorney and make sure they go through the proper procedures to set up the trust. That reduces chances of contesting (or at least a successful contest).  So, the attorney would meet with mom/dad alone, ascertain capacity, explain documents, participate in the signing and witnessing, etc....  All of these things reduce chances of a successful contest.  Additionally, if mom and dad want to totally disinherit your siblings they might want to consider giving them a little carrot (enough money to be meaningful). That way if they contest the trust they get zero if they lose. If someone is looking at getting zero and instead gets $5,000 or $10,000 they might reconsider contesting. Good luck.... Read More

If the assets are in the Trust, then the new Will will have no affect on the Trust distribution of assets.  However, if the assets are not in the Trust then the second Will will supersede the first one. These questions can be complicated.  It's always best to discuss all aspects of this matter with an experienced estate planning attorney.... Read More

Conservatorships end when the conservatee dies - and the assets are subject to post-death probate administration.  Your mom's estate would be liable for payment of court-approved fees for the conservator and his attorney up to your mom's death, and then the probate estate would be liable for payment of court-approved fees of the executor and his attorney.  If you have property belonging to the probate estate, you could be sued by the probate estate to obtain that property from you.  You are not responsible for your father's or your mother's debts unless you have agreed to pay them.... Read More

A trustee has a fiduciary duty to the beneficiary but I wouldn't say they are "beholden to the beneficiary." If the settlor, or trustor, of the trust are deceased then you are entitled to see a copy of the trust (California probate code 16061.7). That should be sent within 60 days of death.... Read More

I am guessing that B of A is the trustee and that is why they sent you a copy of the trust. By law (California Probate code 16061.7) the trustee is supposed to send a copy of the trust within 60 days of death (or notice of the death).  That is, assuming California law applies.  This provision does NOT apply for the will or other documents.  Thus you may not get a copy of the will from them. They should lodge the will with the Court and I believe that would be a public record there so you could get a copy. Typically a misspelled name is not going to be a reason to invalidate a document. ... Read More

I do apologize, however, I don't really see a question in your post. Please re-post with more details and a clear question that you would like answered, and I or another attorney on the panel will be happy to give you some direction. David L. Gibbs, Esq.The Gibbs Law Firm, APCSan Clemente, Californiagibbslaw.com  *Due to the limitations of the Lawyers.com Forums, The Gibbs Law Firm, APC's (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. Further, information you provide to the Firm through this website is not confidential - it is available publicly to anyone visiting this website. The Firm shall have no obligation to keep the information you provide herein confidential in any context. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence. As required by 11 U.S.C. §528, we must now disclose that, "We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code. Assistance we provide with respect to Debt Relief may involve bankruptcy relief under the Bankruptcy Code."... Read More

Generally speaking it's best for mom to have a trust and put all her assets into it.  A POD does not give you legal access to her bank accounts if she becomes incapacitated and banks don't always honor power of attorney forms unless it's their bank specific form. Passing a house by joint tenancy has problems in that you lose 1/2 of the step in basis for capital gains purposes. This can create a huge tax when the house is sold after death.  The capital gains tax could be far more than the cost of a living trust. I would hire an estate planning attorney today to talk about a trust!... Read More

Assuming you are not part of the trust it's hard to imagine a situation where your signature would be required. Unless they are suggesting there is some community property interest.  You are never required to sign anything of course but, I suppose, it's possible they could say no deal if you don't sign. If that happens then you might want to hire cousel to review it to see what you are signing for. Good luck.  -John... Read More

You are entitled to a copy of the trust.  Your mother likely named someone (or an institution such as BofA) to serve as trustee of her trust after she died.  That trustee has the responsibilty to provide you with a copy of the trust.  Sounds like you're estranged from the rest of the family. Nevertheless, one of your siblings likley knows something about this trust and who is serving as its trustee.  If BofA was named as the trustee, it should provide you with a copy of the trust. Continue to seek information from the Officer whose name is on the quarterly bank statements, and if that gets you nowhere go to her supervisor.... Read More

This is highly unusual.  Typically a revocable trust will become irrevocable upon the death of the person making the trust (the "settlor" or "grantor" or "trustor").  Whatever sort of trust it is, the trust will have a trustee.  (If there is no successor trustee named in the trust, you can go to court to have one named.)  The trustee has the power and the duty to distribute the trust assets in accordance with the terms of the trust.  If the trustee is refusing to do this, you can go to court to force him (or her) to do so.  Likewise, if a bank (or other institution or individual holding trust assets) refuses to do what the trustee demands, the trustee can go to court to force the bank to do so.  If, on the other hand, the assets are not in the trust, you may be forced into probate administration (another court procedure).... Read More

Your mother could specify whatever terms she wished in her trust, and different clients will have different wishes.  You must read the trust to determine what those wishes are.  Sometimes a trust will split into separate trusts for each child, other times a trust will continue in effect until the youngest child attains a certain age.  Often a trust will provide for "discretionary distributions" for a beneficiary's health, education, and support.  But to determine what your mother actually did you must read the trust.... Read More

There are many different directions you could go but adding him as a "tenants in common" would NOT be the best move based on your situation. Possibly you mean a "joint tenant" as that would automatically pass the house to him at your death. However, you need to dig deeper before you jump to that. Sometimes the simplest (deeding the house to your son outright or by joint tenancy) creates other problems. For example, transfering a house after death is substantially better for capital gains (income) tax purposes. Thus, since you already have a trust maybe it would be smarter to amend your trust to transfer the house after death!?  I would encourage you to talk to an estate planning attorney and determine what's best in your situation. Good luck. -John... Read More

It's hard to know without knowing if grandma's parents had a will or trust. Let's assume they did not since the majority of people do not. If that's the case then the heirs at law would be established when the second of her parents died. Let's assume at that time she was alive and she had two siblings who had died leaving kids. The estate would thus be divided into thirds and those kids would have a right to their deceased parent's share. Of course this is all a hypothetical guess. Your grandma would have priority to be the administrator of the estate and thus she should file for probate now. She could then sell the house. The proceeds would be splits in thirds, in my hypothetical, at the conclusion of probate. It could get more complicated if one of grandma's siblings were alive at the second death of the parents as then the child's spouse could also have an interest. However, let's not go there now. I would start by having grandma file for probate! It's important that she starts the probate as she has priority to be administrator. Good luck.... Read More

Based on your description I agree with you that the advice being tendered may not be the best long term plan.  The trustee may want to seek court approval of the distribution plan. The trustee may want to run this by another attorney and, likewise, the beneficiaries may want to find their own counsel. Good luck.... Read More

If your mother did estate planning, she likely did powers of attorney for health care, personal care, and financial management.  The agent(s) she named in those powers of attorney have authority to do the things described in those powers of attorney.  If your mother did not do estate planning, and has no powers of attorney, it may become necessary for a conservator to be appointed.  Even with powers of attorney, your brother would have the right to petition the court to have someone appointed as your mother's conservator (of her person and of her estate).  (You have the same right.)  Conservatorship proceedings are exceedingly costly and time consuming, so you want to try avoiding that if at all possible.  Doctor and clergy conversations are covered by privileges, but if you are not a doctor or a clergy person and your mother willingly gave those things to you, that privilege is likely lost.  A conservator steps into the shoes of the conservatee, and can obtain such confidential information.... Read More

Your first resource must be the instrument by which the trust was created and any amendments to it.  It will specify whether the three trustees must act unanimously or if "majority rule" prevails.  If the trust instrument does not specify, California law provides that the trustees must act unanimously, and I assume your "little sister" can stop bad things from happening.  If the trustees must act unanimously, your little sister will need to sign documents in order for th house to be sold. If the trustees may act by majority rule, your little sister has the right to know what the other two are doing and to report that to the beneficiaries (including you).  That right can, if necessary, be enforced by a court.  The trustees are required to invest trust assets prudently and to follow the terms of the trust.  The trustees are bound by fiduciary duties to the beneficiaries (including you). The trustees ar required to report and account to the beneficiaries.  Assuming the trustees are not doing these things, you have a right to seek relief in a court.... Read More

If the primary beneficiary of the life insurance policy was the widow, then she can do whatever she wants with those proceeds.  Only if the trust is named as the primary beneficiary of the policy would the widow need to keep the proceeds separate from her other assets.  The trust itself could remain revocable, but a typical "AB trust" does divide into shares at the time of the death of the first spouse to die.  The precise manner in which those assets are to be divided and then distributed is determined by the terms of the trust instrument. Assuming the beneficary of the policy was the widow, it is her estate plan that would govern where any remaining assets are distributed; the policy proceeds belonged to her, and she could commingle them with any other assets that she owned.  If those proceeds, or a portion of those proceeds, are determined to belong to a trust that was made irrevocable upon the husband's death, then there are a number of ways to segregate what should have been done.  Considering the size of the policy ($100,000), it probably would make sense for the parties to come to some agreement among themselves as to how this should be done.... Read More

There are a number of ways to accomplish your goal.  You should definitely do a will.  If you do a trust too, then this will will be a "pour over will" (meaning that you leave everything to your trust, and that the trust then governs who gets what).  If you wish to do a revocable trust, the benefit is that for assets that you transfer to the trust during your lifetime there will be no need for probate administration.  You can hold assets in joint tenancy with your granddaughter, but that means you have made a gift now (and you may not want to do that).  Many assets (such as bank accounts) can be held in accounts that are "payable on death" to someone.  You would just need to designate your granddaughter as the beneficiary of those accounts. Until your granddaughter is 18 years of age, you should specify that a custodian under the California Uniform Transfers to Minors Act will handle the property.  (You can designate a later age too - up to age 25 under certain circumstances and up to 21 under all circumstances.)  You should pick a custodian (and successor custodians) who you trust to hold property for your granddaughter's benefit.  If you do a trust, you have much greater flexibility in providing when distributions should be made to your granddaughter.  (You may provide for a trust in a will too - a "testamentary trust.")... Read More

You should find out in what capacity is this lawyer acting as, an executor or a trustee.  There are certainly fiduciary duties owed to those benefiting from a trust.  Rude and unprofessional acts are subjectively determined, if she's indeed not carrying out the trust as your mother planned, or taking advantage of beneficiaries by not disclosing what they are gifted or provided for under Trust/Will, that's a legal matter. ... Read More

If your friend did not have a will, then his partner would not have rights unless she had purchased some of the items for the home.  If she did and has proof of ownership, then she can make sure that those items are not taken by the sisters. It's unfortunate that the now deceased partner did not have a will, as this would have protected his partner.... Read More

It sounds like it's more of a trustee issue than a conservator issue. Generally, at death, if there is a conservatorship the assets are distributed to the estate or trust. Then from there the executor of the will or trustee of the trust would distribute after taking care of their duties. In any event I think an estate litigation attorney should probably be brought in to analyze your case for you. Good luck. -John... Read More