California Trusts Legal Questions

There are virtually no lenders who will lend on property which is in an irrevocable trust.  You should probably consult with a local attorney. Depending on what powers you were given in the trust, involvement and cooperation of your siblings, and on your mother's health status, there are various options. It sounds like you might also want to do some analysis of her ability to get long-term Medi-Cal if her health requires nursing home care.... Read More

The short answer is, no you cannot cash the check. It's not made out to you. Send it back to the Franchise Tax Board and request it be made out to either (1) the estate (if there's going to be a probate) or (b) to you if there's not going to be. If the check is made out to you, you're signing under penalty of perjury that you're going to share it with anyone who is entitled to part of it. From the Franchise Tax Board website: The administrator or executor of the deceased taxpayer's estate by attaching certified copies of the letters of administration or letters of testamentary to the return, or Entitled to the refund as the deceased taxpayer's surviving spouse or sole beneficiary under the California Probate Code. Attach to the return a copy of Federal Form 1310, Statement of Person Claiming Refund Due a Deceased Taxpayer, or a copy of the death certificate. ... Read More

The trustee has the right to verify, and have on record, who they distributed the payment to. Anyone could sign your name. If you have a valid driver's license or passport, I would think showing that each time would be sufficient. But are you leaving out any information? Normally a trustee mails out the checks to trust beneficiaries, and requires them to return a signed receipt saying they received the payment. Is there a reason you are going to the office to receive the check, rather than having it mailed?... Read More

I assume A is the sole trustee and A, B and C are all beneficiaries of the trust.  A, as trustee, has the authority to sell the home, but has a fiduciary duty to all three beneficiaries.  If B has possession of the home, then she may be charged rent for her use of the premises.  If B doesn't want the house sold or thinks the sales price is too low, then she can petition the probate court to challenge the trustee's actions.... Read More

It depends on what property the decedent had in his/her name at the time that he/she passed away.  If there was property within the probate estate, then the surviving spouse, a parent, or an adult child initiates a probate petition in probate court.  Contact an attorney for a full consultation.... Read More

You will have to file an affidavit of death of trustee and then you, as trustee, will be able to distribute the property according to the terms of the trust.  If you are the only beneficiary and you can make an outright distribution, then you can transfer the property to yourself so that you can qualify for refinancing.... Read More

In order for the new Family Trust to hold the real property, you will have to re-title the deed to the new Family Trust.  So long as the beneficiaries are the same in each trust and the new Family Trust isn't irrevocable, then there isn't a change in ownership of the property, only a change in the manner of taking title.... Read More

If your parents lived in Florida when they passed and the trust is administered in Florida, then you will need a Florida attorney.  So please seek a Florida attorney. It will depend on Florida law, but in general, the successor trustee is not able to change the terms of the trust or how much a beneficiary of the trust receives.  That is a breach of fiduciary duty to act in the best interest of all of the beneficiaries.... Read More

The settlor (also called the trustor) is the person who creates a revocable trust.  Usually, the same person is the trustee. The settlor can change a trust that is revocable. If the settlor is also the trustee, the settlor changes the trust in their capacity as the settlor. If the trustee is not the same person as the settlor, then the trustee will only have the powers given in the trust instrument.  If the trust gives the power to change the trust, then the trustee can change the trust.... Read More

"Portability" rules that were enacted in the American Taxpayer Relief Act of 2012 allow a surviving spouse to use a deceased spouse's unused estate tax exclusion. An AB living trust would create a subtrust that would shelter the deceased spouse's estate tax exclusion.  This was important fifteen years ago when the estate tax exlusion amount was $600,000 and there was no portability rules.  However, now that the estate tax exclusion is $5.45M for 2016, and with portability that amount doubles to $10.9M, the payment of esate tax will not affect the vast majority of estates.... Read More

It really depends on the expereince in my opinion. A younger, less experienced, attorney may charge $200 an hour. A highly experienced "certified specialist" may charge $500 an hour. So you really need to look at an attorney's credentials before determing what a fair hourly rate is.  Depending on your case it might be far cheaper to pay an experienced "expert" $500 an hour than a rookie $200; efficiency and knowledge save you money! Above all that, of course, is a trust factor. Read the attorney's online reviews, seek referrals, etc.... You need to trust that the attorney will be honest with their time keeping. Lastly, some attorneys will do things on a flat fee basis. For example, we do some trust petitions, to court, on a flat fee basis. That way you know exactly what you will spend. Hopefully that helps you.  -John... Read More

It's not as simple as which is valid.  An attorney will have to review the documents and research the issues.  It's the decedent's intent that is most relevant.  There are strict statute of limitations issues with probate cases, so seek counsel as soon as possible.  Call or email an attorney for a full consultation.... Read More