Frequently Asked Questions
Keith A. Davidson (3)
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)
Q: Trustee won’t make formal split of a/b trust making “b” irrevocable, can he be removed for failure to perform all duties? Father is trustee of a/b trust, won’t give accountings and hasn’t split the trust formally. Deeding and Fed. Tax ID # is non-existent. In the middle of having him compelled to account and removal of fees and costs. It’s been two and half years and no split but he has filed a surviving spouse affidavit. He has ignored all obligations as trustee. What will judge do when shown trustee has not performed duties to enforce terms of trust? He is also not maintaining trust property home that I live in. Is this enough bad fiduciary acts to warrant removal? I am remainder beneficiary, the only child and only beneficiary of B trust. He has given two faulty accountings that I have not accepted because no irrevocable trust appears to exist. I have council but still curious about removal chances.
Stewart’s answer: First, removing a trustee in California is difficult in most cases. And, even if you have the evidence, you have to go through filing a petition with the probate court to remove the trustee, sending written discovery to the trustee, compelling discovery responses where necessary, taking depositions, and ultimately preparing for trial. This will take anywhere from 6 months to 2 years. Almost for certain you’ll need to hire an attorney to help you with this type of litigation. Best of luck.
Q: My brother is the executor of my mother’s trust. He forged an amendment back dated 2012 that leaves him everything.My mother has a Revocable Trust (since 1985). States that everything in her estate will be divided equally between the three of us (her children). In 2012, she Amended the Trust to say that my younger brother would get the house and everything else stays the same. She died in Sept 2014 and my older brother is the Executor. He (Executor), refused to show us or discuss the trust for months, going completely postal any time the subject was mentioned. He completely rewrote the 2012 Amendment to say that he gets everything…100%. He initialed each page with my mom’s initials, then copied the notary page from the actual 2012 document and appended it to his version. It is clearly a scanned image and not part of this document. So the dates match, and the Doc Names match, but this is not the
Stewart’s answer: You’ll need to file a petition to invalidate the 2012 Amendment in the Probate Court. This petition will likely be based on lack of capacity, undue influence, and fraud based on the facts you gave. In addition, you may want to file a civil lawsuit for financial elder abuse against your brother. To do both of these filings it is almost certain that you need to find a lawyer. This is not something that you will be able to do on your own. Best of luck.
Q: Should I have an attorney investigate whether or not I am named in my grandparents trust?My grandmother died in May, 2014. After she passed, I received a letter from my mother stating that I would be receiving a check for my inheritance. A few weeks later she sent me another letter stating that it would be deposited in an already established account for me. That never happened so i went with her to the bank where the above account was held to withdraw the money. The account held only $4,000.00 and she told me that I was only entitled to half of it-yet she decided to give me the entire amount. I have a statement dated 12-3-12 showing a balance of $7,110.26. My grandparents were extremely wealthy-their Rossmoor condo (3352 Terra Granada Dr APT 1B, Walnut Creek, CA 94595) just sold for $750k. She told me that there was no will and that I am not mentioned in the trust.
Stewart’s answer: Send a letter to your mother asking for a complete copy of the Trust. Mention in the letter that California Probate Code section 16061.7 requires that all family heirs and beneficiaries of the Trust have a right to receive a full copy of the now irrevocable Trust 60 days after your grandmother died. There may, or may not, be a Last Will. If there is, it is likely a pour-over Will that gives everything to the Trust. Thus, it’s important to get a full copy of the Trust to see if you are mentioned as a beneficiary. Good luck.