California Trusts Legal Questions

It's very important that you hire an attorney for this probate as it is very difficult to get it through the court without an attorney.  There is a very specific probate procedure in order to sell the property and it must get court approval. You cannot sign the decedent's name and you cannot sell the property using your 'letters of administration'.... Read More

First of all congrats on your upcoming nuptials.  I would say you want both an attorney and a financial planner. I would look for an experienced estate planning attorney to help with many of your questions.  Some of it does get more into financial planning though so I would look for an experienced Certified Financial Planner. Best of luck with all of it.  -John... Read More

The legal question is really do you control and should you have an expectation that items placed into the HVAC system venting will remain in your control and custody. The answer is probably no. You rent the interior space of the apartment, not the HVAC system. The HVAC system not only belongs to the property owner, but also is under his or her custody, control and is to be maintained by the landlord. As such, I don't believe you can reasonably or legally expect that the HVAC system is under your sole and exclusive control. Aside from the legal reasons, hiding personal property and telling only one person is not a good idea. Should you and your sister pass away at the same time, or within a short time of each other, nobody would necessarily know that the property is in the vents and when they move your property out, the valuables could be left in the vents for the landlord, a contractor or the next tenant to find. My suggestion is that you either obtain a safety deposit box at a bank, or alternatively, if you concerned about a safe being stolen, then look at means of securing the safe to something which would be difficult if not impossible to move. Given that you do not own the property to make substantial modifications to secure the safe (or even install a floor or wall safe), I would suggest that a bank safety deposit box is your best bet. 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

It really depends. There are ways to get around a trust. One example would be to show that there has been a change in circumstance. For example, if money was left in trust for you and mentioned a specific reason and that specific reason doesn't exist anymore then we have a change in circumstance. Another idea would be to see it was set up in trust due to a mistake; that is that mom had been falsely given information. However, the bottom line is that this is a complex petition and would be costly to take to Court. Also, you should use an experienced probate attorney. Good luck!  -John Palley... Read More

It sounds like you need legal advice so you understand the community property laws in CA.  The basic purpose of a Trust is to avoid probate for your heirs.  When you are married, a Trust is typically set up as a 'Family Trust'.  It also sounds like you need advice regarding a possible divorce and how that would affect the distribution of property.... Read More

You can contest anything. Normally you want to be careful of a no contest clause. However, if you are totally disinherited then that's not a concern. That is, with a no contest clause it says you risk whatever you are given in the document if you contest. However, if you are given nothing then no risk there. I encourage you to find an experienced trust litigation attorney. Best of luck to you. -John... Read More

Do you have access to the trust document?  There may be provisions in it that govern how it may be amended or revoked.  Read it.  If your husband is not willing to amend the trust, you will want to revoke it.  Follow the procedures for revoking the trust written in the trust document.  If the trust document is silent on the matter, you will want to send a letter to your husband (who I assume is a co-trustee of the trust) telling him that you are revoking the trust.  Give a copy of that letter to someone you trust. If you did a will that leaves everything to your trust (called a "pour over will"), you will want to do a new will that revokes the old one and provides for distribution to your children (or to whomever you want).  I strongly urge you to seek legal counsel on this.  If you don't trust your husband and his children, you need to get copies of whatever you do to someone you do trust - someone who can locate the originals of your new documents and submit them to a probate court when you die.  If your husband is willing to amend your trust, things will be far easier, but I still suggest you obtain legal counsel.  I've seen far too many "do it yourself" trusts that fail to do what the settlor / grantor / trustor (person creating the trust - all of these words mean the same thing) wanted.... Read More

This is a contested matter.  You & the other heirs would need to hire an attorney to represent your interests.  That attorney would do an investigation as to wrong-doing and take the steps to divide the assets appropriately.  When you speak to attorneys in your area, make sure to tell them that this is a contested will or trust.... Read More

"Executors" are persons ("fiduciaries" and "personal representatives") who act under a will - not a trust.  The fiduciaries who act under a trust are its "trustees." To change the executor of your will requires a "codicil" (a will amendment) or a new will.  In either event, if you type the codicil or the will you'll need two disinterested witnesses.  They should sign an attestation clause under penalty of perjury.  You and these witnesses should remain in the room while you sign and they witness the will or the codicil.  Typically, if you have a revocable trust the will will be of the "pour over" variety; assets passing through probate administration (wills are "probated" by a court) are distributed to the trustee of the trust.  It is the trust that handles "who gets what." Changing the trustees and the beneficiaries of a trust is a bit simpler.  You draw up a trust amendment (or, if your changes are extensive, a full restatement of the trust).  The person making the trust (the "settlor" or "grantor" or "trustor") and the current trustee will sign the amendment.  If the original trust was notarized, the amendment should be notarized.  You also need to refer to the original trust to see if there are any further procedural requirements.... Read More

You certainly raise some valid concerns. Generally a qualified estate planning attorney will have a checklist that they go through to determine if a person is mentally competent to make changes to their trust. So, for example, an attorney will talk to the client (alone), talk to them generally about things, ask about their family, ask about their assets, etc.... If the attorney feels the client is mentally competent then they will make the changes being requested.  Each attorney is different of course. ... Read More

It sounds like you are talking about an A/B trust set-up. The question of trust funding of the B,  Bypass trust, or sometimes called Credit Shelter trust can be a tough one. If there are no funding options I have seen B trusts be funded by a promissory note to the A trust. In my opinion it's not the best option but I have seen it done. ... Read More

If their mother has died and left everything to her husband, then their father can leave that property (which is now his property) to whomever he wishes.  There could be other reasons to contest the trust, but the fact that dad didn't provide for one or more of his children isn't enough, by itself, to warrant a contest.  If their mother left her property to her husband in trust, perhaps permitting her husband to use the property or receive income from it during his lifetime and then leaving the property to her children when he dies, dad would be powerless to change it. California has no law requiring a person to leave property to his or her children or any one of them. You need to get a copy of the trust (and any trust that mom may have done) and review it carefully to see whether dad received property outright or in a trust that is not revocable by him. If mom is still alive, she also can leave her property to whomever she chooses.  That ("her property") would include her separate property and her 1/2 interest in the community property of her marriage to dad.... Read More

I'm not clear as to what you are asking. If you are asking how to put the property into your trust, you'll need to consult an attorney in the Philippines as to laws regarding real estate title. If you are asking whether or not it can be in your trust, you should review that question with your trust attorney. If you are seeking advice regarding the benefit or propriety of placing it into your trust, again you need to consult with your trust attorney. 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

I'm unclear as to exactly what you are asking. Where the mother's asset will go upon her passing is a question of either her will, her trust or if she has neither, state law. The father's trust, which you indicate omits the children, is not relevant unless and until he receives the mother's assets and then he passes. I would suggest that you should consult a local estate planning attorney to discuss the full facts of this matter and obtain a reliable opinion as to what is likely to happen. **UPDATED** After answering this question, I saw a second, almost identical question. I assume that the second question was yours as well, and it was worded in a way that I think I know the question you are asking. Based on your second question, I assume that what you are asking is whether, upon mom's death where her assets go to the father, then father dies with a trust that omits the children, can the children contest the father's trust based on his ownership of the mother's assets. If that is the case, the answer is generally no. Once mom dies and her assets transfer to father, father now owns them and may do with them as he wishes. I still would suggest contacting a qualified, experienced attorney to review all of the facts and help you determine what is going to happen. 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

First, I assume when you indicate "executor" you really mean trustee. A trust is managed by a trustee. You'll need to review the trust documentation to determine how to remove your cousin as trustee. I also assume that he's not willing to resign as trustee or you likely wouldn't be asking this question. Without reviewing the trust, it really isn't possible to give you advice regarding how to regain control of this property. I would suggest contacting a local attorney who handles trust matters, and determine how you can accomplish this task. Be forewarned - it could require litigation depending upon the language in the trust and/or your cousin's willingness to step down.  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

You are entitled to a copy of the trust within 60 days of death pursuant to California Probate Code 16061.7. If the trustee knows about you and does not provide you notice they could be subject to damages if you sued them. Thus you should send them a letter, with your current mailing address, refer to this code section and hopefully they will meet their legal obligation. Even if you aren't a named beneficiary you are entitled to a copy. Good luck.  -John Palley... Read More

Are your parents still alive?  If so, they need to contact the lender for any overage received on the sale.  If they are deceased, and the amount is less than $150,000, you should be able to contact the lender and supply the lender with an affidavit.  Most lenders will have the form.  If the amount is in excess of $150,000, or if there is other property in your parents' names that, in total, is over $150,000, you'll need to open a probate administration.  If the lender sued your parents and had the court do the foreclosure (that is actually rare), then you (or your parents) would need to apply to the court to obtain the funds.... Read More

You can always dismiss a petition and/or change lawyers. As the Petitioner those are your rights. I might add if you are already having second thoughts about your lawyer you might address those concerns head-on with your lawyer or consider seeking new counsel. Good luck to you. -John Palley... Read More

Your brother, as trustee, is required to give you a copy of the trust upon your demand.  You should ask for it and all trust amendments.  If the trust documents provide a $10,000 gift for you, then a letter of instructions - one that isn't an "amendment" to the trust - doesn't affect the fact that you are to receive $10,000.  If the trust provides a gift to you and your brother, as trustee, fails to distribute that gift to you he could be held personally responsible. Without actually reviewing the documents, it is not possible to determine if a set of instructions is a trust amendment or merely a list of non-binding wishes and desires.  The trust itself may provide rules on how it is to be amended, for example.  Notarized documents should be amended with other notarized documents.  Trust amendments should indicate that the person making the amendment intends for it to be an amendment.  "Should" means it is good practice to do that, but not absolutely necessary under all circumstances.... Read More

If you were named as a beneficiary of a trust, the trustees of that trust are required to notify you of the change of status of that trust from what was (I assume) revocable during your god-father's lifetime to what is now (I assume) irrevocable.  If your god-father had a will, that was also supposed to have been filed with the court clerk.  However, many will neglect to do this if no probate administration is opened.  Bank accounts can be held in a manner that will pass to you directly following the death of the original account holder.  If that was the case, only you (or your parents or other legal guardians) should have been capable of withdrawing from such an account.  If you know the bank involved, you can ask there. Sometimes a settlor of a trust (the person creating the trust) will record a "certification" or "memorandum" of the trust.  There is nothing in the law that requires that this be done, however.  Even less often a settlor of a trust will actually record the entire trust instrument.  (Don't expect that to have happened.) Have you asked for the documents so you can see for yourself?  ... Read More

When a person dies, all powers of attorney terminate. A trustee holds property for the benefit of the trust's beneficiaries.  Often a successor trustee wants to clarify that he (or she) is now the trustee because the original trustee is now deceased.  Property formerly held by the deceased person as trustee is now held by the named successor trustee as trustee.  So if that's all that is going on here, that is appropriate.  However, taking trust property outside of the trust for the trustee's own benefit (if the trustee isn't also a beneficiary of the trust) is definitely wrong and illegal. When a revocable trust becomes irrevocable by reason of the death of the person who created the trust, the successor trustee is supposed to send out a notice to the beneficiaries.  If you haven't received one, ask for it.  If you are a beneficiary of the trust you are entitled to see a copy of it.  Ask for that too.  Also ask about the change of names.  Was that done to clarify that the successor trustee was now in charge, or was it a distribution to the successor trustee personally?  If the successor trustee is a beneficiary of the trust, you can ask if that distribution to the successor trustee was for that purpose and if you are to receive a distribution as well (assuming you are a beneficiary of the trust).... Read More