California Trusts Legal Questions

Record title should govern.  The last recorded deed in the chain of title will tell who or what entity owns the property.  Assuming the trust instrument doesn't specify that the trust assets are to be distributed outright to your dad, and that the trustee of the trust is currently in title, your dad had no right to lease the property individually nor to receive the rents.  You will need to evict the tenant if the tenant will not recognize that you are the trustee of the trust which owns the property.  And you could also sue your dad for converting assets not owned by him, or for breaching his fiduciary duties as trustee (while he was serving).... Read More

I am sorry to hear of your wife's passing. I am guessing she was way too young. YES, get a trust! There are many reasons why a trust is best for you but most notably it avoids probate which will save your children a lot of money when you die. Look at lawyers.com for "AV" rated estate planning attorneys. That is the highest offered at lawyers.com.  There are other similar sites that rate attorneys also and, again, look for their highest rating.  Also, I would look for someone who is a certified specialist in estate planning, trust and probate law as this means they took the time to take a second bar exam. To me, it's the practitioners who focus enough on their type of work to become a certified specialist that demonstrate a deep connection to this area of law. Good luck. -John Palley... Read More

To answer that question, one must first read the written lease agreement between you and your grandfather. Since I don't have the benefit of access to that document, it is not possible to provide any information about "cause" under the terms of the lease to terminate it. Outside of the lease, however, there is a provision in California law under which even a term lease can be terminated if the property is sold AND the buyer intends to occupy it as their principal residence. I don't have the citation to the Civil Code handy, so you may wish to do a little research. I am not aware of any law that indicates that this does not apply if the property is sold to a relative. You also need to ask the question here whether or not it is actually being "sold" or just transferred. Contact a local tenant's rights attorney to review the lease and determine if the exception for a sale is valid in this case. 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

This is a tough one. If the property is owned 100% by the trust and the 3 people are beneficiaries of the trust the credit card shouldn't matter. The trustee should be allowed to sell.  On the other hand if the owner, with the trouble, owns his part of the house outside of the trust then maybe the credit card company somehow put a lien against the house!? It's difficult to ascertain, from your question, what the exact situation is.... Read More

That is too bad you find yourself in this position. You may, or may not, be entitled to a copy. It's hard to know.  If the trust became partially irrevocable at your dad's death then you would be entitled to a copy of the portion that became irrevocable at his death. This is a common way of setting up a trust in a blended family. You thus would make a request pursuant to California probate code 16060.7. Actually mention that probate code section in your letter.  This assumes the wife lives in California I might add. If that doesn't work then you could file a petition in the probate Court in the county she resides asking for a copy pursuant to this code section. For this you would likely want to hire an experienced probate attorney. Good luck!  -John... Read More

Have you done a search for unclaimed property?  The California State Controller's office maintains a website to do searches:  http://scoweb.sco.ca.gov/UCP/Default.aspx.  If you've done a Google search you may have come upon this page:  http://en.wikipedia.org/wiki/Washington_Mutual, which gives a good summary of what happened to Washington Mutual.   The old Washington Mutual branch where your grandfather banked, is that now a Chase Bank?  Did you try asking there?... Read More

It's wise to pay attention to your instincts and at least look into this situation a little deeper. Typically the attorney represents the trustee of the trust. That is the attorney does NOT represent you. Sometimes a beneficiary gets their own counsel to represent them. You should at least find an attorney for an initial consultation to give you a better lay of the land. In terms of the current attorney it sounds like they were also the drafting attorney. That means they represented the creators of the trust. If so there is at least a technical conflict of interest in representing the trustee. If you wanted to get the attorney out of the picture you could bring up this conflict. However, I would think through the repercussions first. That is, personal (family type stuff) and also legal (is another attorney going to be better or just cost more money?). Good luck to you.  -John... Read More

You have a loaded situation there for sure.  I do think it's a good idea to consult with your own estate attorney. Just so you have a good understanding of everything and to see what options you may have (if any).  Though there are likely no contest clauses in place it is NOT a "contest" to hire your own counsel. You have that right and probably should take advantage of it. Good luck. ... Read More

It depends. Was it a mandatory A/B trust or a disclaimer A/B trust? A lot of A/B trusts are disclaimer trusts which means the surviving spouse can choose to elect the B trust funding. If so, then they can amend the entire trust. Having said that there are situations where the surviving spouse can only amend 1/2 of the trust. The key would be talking to an experienced trust and estate attorney. Good luck. -John... Read More

Thank you for your question. It's not entirely clear what you mean so I would suggest you add some more details. Is this a trust or a probate situation? Are you named beneficiary? Have you seen a copy of the will or trust and does it specifically say you are to receive the money now? How long ago did the person die? There are more issues but that's a good start. Also, generally speaking the attorney does not make the decision on when to distribute. That would be up to the trustee in the case of a trust and up to the Judge if it's a probate. Good luck. -John... Read More

You are not required to spend your own money for the benefit of your mother's companion.  Furthermore, I doubt that the trust (please do read it) permits your mother's companion to damage the premises - he will need to undertake repairs or reimburse the trust for those repairs.  If the trust has run out of money, and all it owns is the house, your mother's companion will need to pay for all living expenses, utilities, taxes, maintenance, and upkeep.  (Your mother's trust documents may say something different, so you do need to read them.)  Depending upon what the trust says, he may have no further rights once he has abandoned the property.  Most likely you are entitled to receive the property when he dies or abandons the property with "ordinary" wear and tear during his occupancy.  (For example, if there was new carpeting when your mother died, and he lives there 10 years, when he dies or moves out you are entitled to the house with 10-year old carpet that hasn't been excessively damaged - not brand new carpet.)... Read More

Yes, you could petition for guardianship of the estate.  I would think you would have a good chance of prevailing. You may suggest to your probate attorney that they pray for the appointment of a third party professional, in the alternative, in case you are not successful. Good luck. -John... Read More

Some thoughts- You will more than likely need to hire an attorney; Your attorney may tell you that the "Statute of Limitations" has "run"- the statute of limitations consists of a period of time during which a lawsuit can normally be filed; once the statute has "run", the time allowed for that type of action is (usually) considered to be closed; 14 years is likely too long, although you may have an opening if you just found out about the trust/ issue; Grandmom needs to cough up a copy of the trust or other documents she has, it's unclear from your question whether parents are still around, but if so, they should be consulted as well; If you can't get a copy of the trust/ documents, you may want to ask your attorney re: an "official" letter to the brother requesting the documents; Your brother, if he was the successor trustee and without knowing any of the other specifics, had a fiduciary duty to all beneficiaries of the estate for fair/ impartial treatment- if there is a legal action to be taken, this seems likely to be the main contention. Good luck-... Read More

Lisa - while I do not know the rules that apply in California, for federal purposes, a person must have wealth in excess of $5 million before any taxes are due.  If your parents' wealth is less than $5 million you will not owe any Federal estate tax. In addition, the house would receive a new basis to compute any capital gain on sale after death.  If the property was worth $1 million at death, the basis in the property would be $1 million.  Unless you sold the house for more than $1 million, you would not owe any capital gains tax.  Most property sold at a gain after death is also taxed at favorable long-term capital gain rates.  You need to check on the laws that apply in California as to inheritances.  While California may not have a $5 million limit, it does have some limit, so if the person's total estate is worth less than the limit, no State taxes would be due.... Read More

A bit late on this, I see.  You first need to look at the trust documents to see what they might say concerning trustee compensation.  If the documents are silent, or specify a "reasonable fee," you'll want to check with professional fiduciaries to see what the market is.  I've found that smaller trusts can warrant a fee as high as 1.5% of the value of the assets, paid annually; perhaps even more.  Larger trusts (over $5,000,000 for example) warrant a considerably smaller fee - perhaps as low as 0.5%.  If you are an inexperienced individual who has been named as trustee, your fee should be less than that charged by a professional.  Another approach would be to charge for your services by the hour - but never more than the fee I just described (based upon the value of the assets under management).  One final approach would be to use probate administration fees as a "ceiling."  Trusts are sold as being less costly than probate, so a probate equivalent fee would be too high. If in doubt, and you are the named trustee, you could suggest a reasonable fee to the beneficiaries of the trust first (to see if any of them objects).  If there are objections, you can file a court petition to set the fees.  (I would use that approach as a last resort.) Different trusts can have different "reasonable fee" schedules.  Some trusts require more work than others; sometimes that work is only temporary, in which case a one-time "extraordinary fee" might be warranted.... Read More

From your question, it's hard to tell what you mean by "doing his job"- there are a lot of moving peices to any estate and, unfortunately, the attorney very often has little or no say on what happens- he is bound by the court's determinations as well as the statutory requirements.  Additional information regarding the other parties to the estate (beneficiaries) as well as the type of estate (probate or trust) would also be helpful. That said, I suggest writing a letter to the executor/ attorney outlining your concerns and reminding them that they have a fiduciary obligation to ALL beneficiaries of the estate.  Request a description of the steps taken so far to resolve the estate and the remaining steps and the (anticipated) timelines. This letter should also contain a reasonable deadline within which the executor is to respond, in writing, to your concerns.  If there are other beneficiaries, try to get them to join in sending the letter.  Send the letter Certified Mail w/ Return Receipt. If the executor responds and you are satisfied with their response, keep tabs on the progress of the estate (keeping in mind that the executor doesn't control the court and that there will likely be delays) and continue requesting additional information in writing as the process continues. If you are not satisfied with the executor's response, I suggest contacting another probate attorney to look into filing a separate probate or probate contest on your behalf.... Read More

It's hard to tell from your question. Are you indicating now the 3rd person also wants to not act? I see no reason why the other 2 agents have to approve anything. Once they relinquished their rights they are done. You may need to look into a conservatorship if mom is not mentally able to sign a new power of attorney. Good luck. -John... Read More