The Big Freeze: How to Freeze Trust and Will Assets in Bay Area Lawsuits

 

Frozen Assets

Why can’t you just freeze Trust assets as soon as you file your Trust lawsuit?  Well sometimes you can, but other times it is not so easy.  In fact, in nearly every case you have to start from the point that assets are not generally going to be frozen once a lawsuit is filed.

Freezing any assets before trial is called “pre-trial” relief and it can be hard to obtain because you are asking the court to take action before a trial has occurred.  In other words, before any evidence has been produced to the court (remember your court pleadings are not evidence yet).

But there are exceptions to the rules.  In Trust matters, as with any lawsuit, pre-trial relief can be awarded using things like temporary restraining orders (called “TRO’s”) and preliminary injunctions.  But to receive that type of relief you have to show (1) that the asset you are seeking to protect is unique and cannot be easily replaced (since money is generally not “unique” it tends to not qualify; whereas real property is nearly always unique), and (2) you are substantially likely to prevail on your claim (that can be tricky to establish before trial).

So freezing assets is not impossible, it just takes a good deal of work and you can never be certain that the court will give you want you want.  The court has broad discretion to grant pre-trial relief or not.

But there is one easy way to lock down real property—the good old Lis Pendens.  Also called “Notice of Pendency of Action.”  This is essentially a lien that is filed first with the County Recorder and then with the Court that puts a litigation lien on real property preventing it from being refinanced or sold until the lawsuit is concluded.  Beware, however, that Lis Pendens cannot be filed on just any real property.  It can only be filed where there is an actual claim to the title of real property.  That is not the case in every Trust or Will lawsuit.  And if you are wrong about filing a Lis Pendens, then the opposing party can be a motion to expunge the Lis Pendens and you will be punished by paying for their attorneys fees and costs to bring the motion.

Don’t be discouraged, freezing assets in Trust or Will matters is not impossible.  It just takes hard work, and some good luck from the court