Frequently Asked Questions

Keith A. Davidson (3)

Q: Can trustees of an ir-revocable trust transfer the property back to themselves individually?

Keith’s answer: No they cannot do so unless the Trust allows for that (in which case it is probably not a irrevocable trust). In California there are ways in which to terminate an irrevocable Trust provided by the California probate code. Those are the only ways in which Trusts can be terminated.

Q: Trustee wont give beneficiary trust statements? Im a beneficiary. After the trust was liquidated, the trustee wants all the beneficiaries to sign a waiver to a formal accounting to save money, before writing pay out checks to beneficiaries. I wanted to see the informal accounting first and was sent a basic excel format that listed final decedent fees, lawyer/cpa/trustee fees, the credits of some real estate and banking accounts and the total amount. I wasn’t very satisfied with it so I asked to see the trust statements and the trustee says no, because they’re sensitive documents. Is this normal? I’d like to avoid formal accounting too, but I don’t exactly trust the trustee not to self deal. What’s the worse case scenario he could do? Any recommendations? Thanks.

Keith’s answer: There is an intermediary step here, you can ask for an “informal accounting”–that is an accounting that meets the requirements of Probate Code section 1061, but not have it filed in court. Once you review the informal accounting, then you can decide if you want a formal accounting filed with the court. An accounting that meets the format requirements of Probate Code section 1061 would give you all the information you need to understand the Trust transactions. You also should receive all the backup financial documents, such as bank and financial statements. You are entitled to that information (it is not “sensitive”) and you should obtain a copy before signing off on anything.

Q: Need to know time limits on ex parte petition to remove Trustee? We have an emergent situation with a trustee who has not performed their duties, used funds that are not of the trust, not paid bills, hired an attorney and paid him but not other things in order to disfavor one particular beneficiary and contest the trust and due to all these actions putting the trust at risk of insolvency. There is already a case on file to remove him as trustee due to breach of trust but that was almost two years ago in California and it has not yet been heard. I know how to file but how much notice is required and IS personal service of papers required in Orange County CA?

Keith’s answer: Typically, Ex Parte applications require 24 hour notice, but most courts, Orange County included, have moved to a system where you have to file your Ex Parte application with the court first, and then they give you an Ex Parte hearing date. You then have to give notice of that date. Typically the date is 5 days or so after you submit your Ex Parte application. Personal service is not required, Ex Parte notice is provided by phone to the Trustee’s lawyer.

Stewart R. Albertson (3)