In our Sacramento trust and estate litigation practice there are several questions that come up over and over again. In many instances, these questions are the building blocks of our practice that lead to more complicated questions that sometimes require the filing of a lawsuit to answer. As a starting place, below are some of the more common questions we receive from trustees and from beneficiaries.
- The trustee refuses to give me a copy of the trust! What can I do?
California Probate Code section 16061.5 requires a trustee to provide a true and complete copy of the trust instrument to any beneficiary who requests it and to any heir who requests it, whether the heir is named as a beneficiary in the trust or not. As long as you are either a beneficiary of the trust or you are closely related to the person who created the trust, then you probably are should be entitled to receive a copy from the trustee upon request. If the trustee fails to honor your request, you can file a petition with the court per Probate Code section 17200(b)(7)(A) to request an order commanding the trustee to provide you with a copy of the trust instrument.
There are some caveats to this rule. For example, if the person who created the trust is still alive and/or if the trust is revocable (meaning that the power exists in some person to change the terms of the trust), then you likely are not entitled to a copy of the trust instrument. In addition, if you are a friend or neighbor of the person who passed away (and not an heir) then you likely are not entitled to a copy of the trust unless you are named as a beneficiary. Of course, this can lead to a “chicken or the egg” question that may need to be resolved by the court since how do you know if you are a named beneficiary if the trustee refuses to show you the trust?
- My mother passed away and she left me in charge. I just know that my brother is going to cause a fuss. What should I do next?
The answer depends upon what estate plan, if any, your mother left, and the size of her estate. If your mother left a large estate, one with different kinds of property, or you highly suspect that your brother will file a lawsuit related to the estate, then your first step should be to hire an attorney to guide you through the process. The reasonable costs associated with hiring an attorney to help administer an estate or trust (and, generally, even to defend the lawsuit your brother might bring) are properly paid from the estate or from the trust, and not by you personally.
If your mother left behind a simple will, then your attorney’s first step may be to lodge the original of the will in the court where your mother resided at the time of her death. Then, if you are the named executor, then you may want to quickly move forward with filing a petition for probate, assuming that probate is required (see below). A person named as the executor in a will may waive the right to appointment if they fail to petition the court for administration of the estate within 30 days of the date of death, unless there is a good reason for the delay.
If your mother left behind a trust, then the first step of trust administration is generally for the trustee to send out a notification of death of trustee as described in California Probate Code section 16061.7(h). By mailing this notice you start a 120-day clock for a beneficiary to file a lawsuit challenging the validity of the trust. The failure of a beneficiary to object and to file a lawsuit within that 120-day period will likely mean the beneficiary’s claim is barred. If you are a beneficiary who receives a 120-day notification from a trustee, then you should be aware that you have a short fuse to raise an objection.
If your mother left no estate plan at all (which is called intestacy), it may be necessary to start a probate proceeding. Of course there is no need to lodge an original will that does not exist. The question of who receives your mother’s intestate estate is answered by Probate Code sections 6401 through 6402.5, and depends substantially upon whether your mother left a surviving spouse. If not, then the property will generally be distributed based on closeness of family relation: first to children and/or grandchildren, then to parents, and then to siblings and/or nieces and nephews. There are many complicating factors related to adoption, blended families, and more remote relatives, but those questions are beyond the scope of this post.
Administering estate plans after the death of your loved one can be a complex and legally intensive process and you should consult an attorney if you are unsure of how to proceed. That said, there are some resources for people who want to try to go-it-alone, such as this information page made available by the Sacramento County Superior Court.
- My aunt passed away last week. She had very few assets. Do I need to file a petition with the court?
It all depends on the value and character of your aunt’s property. California Probate Code section 13100 permits a “small” estate to be wound up in a streamlined process using signed declarations instead of involving the court. This procedure is an option if your aunt’s property was all personal property (such as, furniture, jewelry, a car, and even banks accounts and cash), and not real estate, and the fair market value of all of the property is $150,000, or less. But, to use this procedure, you must wait until at least 40 days have elapsed since your aunt’s death. If there is a reason that the process needs to move faster, then you will need to involve the court. The required contents of a Probate Code section 13100 declaration are detailed in Probate Code section 13101.
If your aunt owned real estate, there is also a procedure available to transfer that property without the need for a full probate, but only after six months have passed and only if the real property has a value of $50,000 or less.
Wrapping up a loved one’s final wishes can be a stressful and complicated process. If you find yourself in the shoes of a trustee, personal representative, or of a beneficiary, you may want to consult with an attorney to understand your duties and your rights. Part two of “Just the FAQs” will include a discussion of accountings, trustee and executor compensation, and no contest clauses.