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Trust Document

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Trust Document

Postby Absolon » Fri Dec 09, 2016 12:22 am

My father died in 2005 in Calif. My stepmother who is the trustee will not provide me with a copy of the Trust for which I am a beneficiary. I do not know nor will she divulge the law firm or the attorney who prepared the Trust. May I go to the county in which my father died to request a copy? This is Calif.

Thank you,

Erika

ANSWER: Thank you for letting me know this is California.  Unfortunately, trusts are not filed anywhere unless there's a lawsuit involving them.  You might try going to the County Recorder's office if they own real estate and seeing if you can find the deed that transferred the real estate into the trust.  Sometimes the lawyer's name is in the upper left hand corner.  

However, the lawyer probably cannot give you any information ... the lawyer does not represent the "trust"; s/he represents the people who set up the trust(your father and your stepmother) or the trustee(who is probably your stepmother) - and attorney/client privilege prevents the lawyer from divulging any information without his/her client's express consent.

The only way you can force your stepmother to divulge any information about the trust is to file a petition to compel production of trust - under California law as a beneficiary, you do have a legal right to see a copy of the trust, but you might need to file a legal action in order to get your stepmother to comply with the law.  There's some risk in that, though ... if she has the right to change beneficiaries, she might get mad at you and exercise her rights(for what it's worth, most trusts do not allow the surviving spouse to change the beneficiaries - but a few do).

Hope that helps.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

---------- FOLLOW-UP ----------

Janet,

From your explanation, is my understanding correct that if the Trust involves NO real estate that the trust would not be filed anywhere other than a copy held by the attorney and processed somewhere through the legal system but that no document in the court/legal system would exist? To the best of my knowledge there is/are no lawsuits involving this trust.

Further is it that my stepmother is required by law to provide a copy of the trust to beneficiaries in CA,(regardless of any real estate), BUT that a beneficiary must file a petition in order to compel her to do what she is required to do by law? I do strongly suspect that it is an irrevocable trust.

Although my belief is that the Trust involves no real estate,(cash only I was told,) it seems worth while for me to check with, as you say,  the county recorder's office with regard to the Trust and with the probate dept regarding a/the Will in this case of cash only,(no real estate). Would I be correct in this way of thinking? Is my understanding correct that a will can be written into or part of the Trust??

Thanks again, so very much!

Erika

ANSWER: Thanks for your follow up question.  You are correct ... if the trust does not involve any real estate, the trust document would NOT be filed anywhere(that's one of the emerging problems with trusts ... the legislatures have not really dealt with this yet) and the court/legal system would not be of any use to you.  Neither would the county recorder's office ... the only way anything would be filed in the recorder's office is if there were real estate that had been transferred into the name of the trust.

Yes, your stepmother is required by California law to provide a copy of the trust to the beneficiaries.  But I cannot tell you how many of my clients refuse to do that!  And I cannot force them to(as their lawyer, I cannot report them to anyone for failure to comply with the law ... that would be revealing client confidences & could get me disbarred!).

If there's any possibility that real estate is in the name of the trust, there's no harm in contacting the recorder's office.  Also, the will is supposed to be "lodged" with the probate court in the county where your father resided.  It's possible that the lawyer was able to persuade your stepmother to do that, at least.  If the county has a website, you can probably obtain "case information" on the website.  Even if the only thing that's happened is that the will was lodged, it would have been assigned a tracking number(which is probably a "case" number).

If the county does not have a website(or the website does not contain a complete list of documents), you can write to the Probate Court Clerk and request a copy of the will.  Enclose a check made payable to "XXX Superior Court Clerk".  Leave the amount blank.  Enclose a self addressed, stamped envelope and ask the clerk to send you a copy of the will.  Include as much information as you can, especially if it's a common name(for example, "John Smith, who died in 2009 and who probably listed Mary Smith as one of his executors").

As for a "will being written into a trust", that's not quite correct.  A competent lawyer would have prepared a will even if s/he prepared a trust ... clients do not always remember to transfer all of their assets(except assets that should not be transferred, like IRAs & 401ks) into the name of the trust ... in those situations, a will comes into play - the assets have to go through probate, but at the end of the probate proceeding they are transferred to the trustee of the trust.

Hope that helps.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

---------- FOLLOW-UP ----------

Thank you again Janet,

I have a different question now. I apologize for my lack of clarity. My trust is not due to take affect, meaning that I receive no $ disbursements until I'm 65, currently I'm 54. I was told by my father prior to his death that I would receive, "so much $ per month." I'm guessing the correct legal term for this monthly allowance is "disbursements?" I would like to pass this on in my estate to a sole beneficiary and/or charity. Could, the writing of the original Trust prevent me from doing what I want with this inheritance?? Upon my death, might the remaining funds or terms of the disbursement(or whatever it is) possibly revert to someone in my stepmother's family?
Absolon
 
Posts: 37
Joined: Thu Apr 17, 2014 11:30 pm

Trust Document

Postby Bittor » Sat Dec 10, 2016 8:28 am

It's impossible to answer your question without reading the trust.  It's possible that you only have the right to "income"($x per month) and if you die before you reach age 65 that the "principal" goes to someone else.  Or the trust might give you what's known as a "power of appointment" and allow you to designate who should receive the "principal" if you die before it's distributed to you.  You will probably need to let an estate planning lawyer read the entire trust to figure that out.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Bittor
 
Posts: 33
Joined: Thu Apr 03, 2014 3:50 pm

Trust Document

Postby Chochmo » Sat Dec 10, 2016 4:26 pm

My father died in 2005 in Calif. My stepmother who is the trustee will not provide me with a copy of the Trust for which I am a beneficiary. I do not know nor will she divulge the law firm or the attorney who prepared the Trust. May I go to the county in which my father died to request a copy? This is Calif.

Thank you,

Erika

ANSWER: Thank you for letting me know this is California.  Unfortunately, trusts are not filed anywhere unless there's a lawsuit involving them.  You might try going to the County Recorder's office if they own real estate and seeing if you can find the deed that transferred the real estate into the trust.  Sometimes the lawyer's name is in the upper left hand corner.  

However, the lawyer probably cannot give you any information ... the lawyer does not represent the "trust"; s/he represents the people who set up the trust(your father and your stepmother) or the trustee(who is probably your stepmother) - and attorney/client privilege prevents the lawyer from divulging any information without his/her client's express consent.

The only way you can force your stepmother to divulge any information about the trust is to file a petition to compel production of trust - under California law as a beneficiary, you do have a legal right to see a copy of the trust, but you might need to file a legal action in order to get your stepmother to comply with the law.  There's some risk in that, though ... if she has the right to change beneficiaries, she might get mad at you and exercise her rights(for what it's worth, most trusts do not allow the surviving spouse to change the beneficiaries - but a few do).

Hope that helps.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

---------- FOLLOW-UP ----------

Janet,

From your explanation, is my understanding correct that if the Trust involves NO real estate that the trust would not be filed anywhere other than a copy held by the attorney and processed somewhere through the legal system but that no document in the court/legal system would exist? To the best of my knowledge there is/are no lawsuits involving this trust.

Further is it that my stepmother is required by law to provide a copy of the trust to beneficiaries in CA,(regardless of any real estate), BUT that a beneficiary must file a petition in order to compel her to do what she is required to do by law? I do strongly suspect that it is an irrevocable trust.

Although my belief is that the Trust involves no real estate,(cash only I was told,) it seems worth while for me to check with, as you say,  the county recorder's office with regard to the Trust and with the probate dept regarding a/the Will in this case of cash only,(no real estate). Would I be correct in this way of thinking? Is my understanding correct that a will can be written into or part of the Trust??

Thanks again, so very much!

Erika

ANSWER: Thanks for your follow up question.  You are correct ... if the trust does not involve any real estate, the trust document would NOT be filed anywhere(that's one of the emerging problems with trusts ... the legislatures have not really dealt with this yet) and the court/legal system would not be of any use to you.  Neither would the county recorder's office ... the only way anything would be filed in the recorder's office is if there were real estate that had been transferred into the name of the trust.

Yes, your stepmother is required by California law to provide a copy of the trust to the beneficiaries.  But I cannot tell you how many of my clients refuse to do that!  And I cannot force them to(as their lawyer, I cannot report them to anyone for failure to comply with the law ... that would be revealing client confidences & could get me disbarred!).

If there's any possibility that real estate is in the name of the trust, there's no harm in contacting the recorder's office.  Also, the will is supposed to be "lodged" with the probate court in the county where your father resided.  It's possible that the lawyer was able to persuade your stepmother to do that, at least.  If the county has a website, you can probably obtain "case information" on the website.  Even if the only thing that's happened is that the will was lodged, it would have been assigned a tracking number(which is probably a "case" number).

If the county does not have a website(or the website does not contain a complete list of documents), you can write to the Probate Court Clerk and request a copy of the will.  Enclose a check made payable to "XXX Superior Court Clerk".  Leave the amount blank.  Enclose a self addressed, stamped envelope and ask the clerk to send you a copy of the will.  Include as much information as you can, especially if it's a common name(for example, "John Smith, who died in 2009 and who probably listed Mary Smith as one of his executors").

As for a "will being written into a trust", that's not quite correct.  A competent lawyer would have prepared a will even if s/he prepared a trust ... clients do not always remember to transfer all of their assets(except assets that should not be transferred, like IRAs & 401ks) into the name of the trust ... in those situations, a will comes into play - the assets have to go through probate, but at the end of the probate proceeding they are transferred to the trustee of the trust.

Hope that helps.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

---------- FOLLOW-UP ----------

Thank you again Janet,

I have a different question now. I apologize for my lack of clarity. My trust is not due to take affect, meaning that I receive no $ disbursements until I'm 65, currently I'm 54. I was told by my father prior to his death that I would receive, "so much $ per month." I'm guessing the correct legal term for this monthly allowance is "disbursements?" I would like to pass this on in my estate to a sole beneficiary and/or charity. Could, the writing of the original Trust prevent me from doing what I want with this inheritance?? Upon my death, might the remaining funds or terms of the disbursement(or whatever it is) possibly revert to someone in my stepmother's family?
Chochmo
 
Posts: 45
Joined: Sat Jan 11, 2014 6:01 am


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