Frequently Asked Questions
Why do I need a Trust?
The primary reason people create a trust is to make sure their loved ones are taken care of once they pass away. A trust is a private document, so your personal information is not made public, and you can make sure your property is distributed according to your wishes.
What is Probate?
Probate is a lengthy and expensive court process where the Court oversees the distribution of property. Many people think their assets will only go through probate if they die without a will. While that is true, if you die having only a will and not a trust, your assets will also go through the probate process and become public record.
How long does probate take?
The length of the probate process typically takes a year to two years.
The Trustee won't give me a copy of the trust, what can I do?
A trustee is obligated pursuant to the California Probate Code to deliver a copy of the trust to certain individuals. If you are a beneficiary of a trust, and the trustee will not provide a copy to you, you may be able to seek a court order instructing the trustee to deliver the trust to you.
How do I have the trustee removed?
Trustees are bound by the fiduciary duties outlined in the California Probate Code. If you believe a trustee has breached his or her fiduciary duty, you may be able to seek a court order removing the trustee from their position.
I'm a trustee, what do I do next?
Once you have begun to act as Trustee of a trust, you have strict duties to which you must adhere. A Trustee’s duties are extensive and include, among other things, collecting the Trust assets and ensuring they are distributed to the beneficiaries. Trustees may have a duty to give annual accountings, or updates to the beneficiaries; they are required to ensure they are acting in the best interest of the beneficiaries; and have a duty to keep the beneficiaries informed. If you are a trustee, it is a prudent idea to consult with an attorney to help ensure you have not breached any duty to the beneficiaries of the trust.
What happens to my children if I die?
If you have children under the age of 18, it is imperative that you have a will naming a Guardian for your children. The person appointed as Guardian of your minor children will work closely with the Trustee in following instructions you have laid out in your comprehensive estate plan. Having these components in place ensures as smooth of a transition as possible in a tumultuous time.
How do I choose a guardian for my children?
The person named to be Guardian of any child under 18 should be someone held in a trusted position within your family or friends. It is important to note that naming a Guardian for your children is your chance to ensure your voice is heard concerning what you think is best for your children in the event you aren’t here. If you do not have your wishes in writing, the Court has a process for selecting which family member they think would be the best fit to serve as a Guardian for your children. While many people select a family member to act as Guardian, some opt to select a close friend. The Court would have no way of knowing who you would select if you do not make these wishes known. A comprehensive estate plan ensures that this does not become an issue.
How do I help an elder who is having their money taken by someone close to them?
California has special laws in place to protect those who are the most vulnerable. Oftentimes the elder does not have the proper capacity to know that they are being taken advantage of. If you observe an elder being taken advantage of by a family member or caretaker, contact and attorney to discuss whether the elder has a claim for Financial Elder Abuse.
What is financial elder abuse?
Financial Elder Abuse occurs when someone, whether it be a family member or caretaker, effectively takes or uses an elder’s assets without their permission. Sadly, once someone’s capacity has begun to decline, those with bad intentions begin to inappropriately use the elder’s assets in any number of inappropriate ways. California has very specific Financial Elder Abuse statutes which carry severe penalties against anyone who has committed such abuse.
How do I avoid probate?
The creation of a Trust is the basic was to avoid probate. Assets passed through a Trust are given to the beneficiaries without a court proceeding.
What do I do if the trustee is breaching their fiduciary duty?
If a trustee has violated any of their duties, a beneficiary may have a claim against the trustee. With these claims, the beneficiary can seek an order from the court removing the trustee or charging the trustee to return any funds wrongfully taken from the trust.
What do I do if the trustee is refusing to distribute the trust?
If a trustee is refusing to deliver information related to the financials of the trust, or refusing to distribute at all, it is important that the beneficiary take action. A trustee refusing to distribute or render an accounting is a red flag for wrongdoing – if such action occurs, the beneficiary may seek an order from the court forcing distribution and charging the trustee for any wrongdoing.
What are my rights as a beneficiary of a trust?
Even though the trustee has physical and legal control over the trust assets, beneficiaries too are entitled to information. Except in rare cases, beneficiaries are entitled to an accounting, to review bank statements of trust accounts, and to be reasonably informed of trust activity. It is important to contact an attorney and have the trust reviewed to determine your specific rights.
How do I protect my inheritance?
If a beneficiary believes a trustee is inappropriately managing trust monies, or worse – stealing from the trust, it is important to consult with any attorney. If a showing of wrongdoing can be made, a beneficiary may seek an order from the court freezing liquid assets until accusations of any wrongdoing have been resolved. Additionally, a Lis Pendens may be able to be filed in certain circumstances to prohibit a trustee from selling or refinancing any real property. It may be difficult to recover assets once they have been spent, so if wrongdoing is suspected, it is important to contact an attorney and take action quickly.
What do I do if I am being sued by a beneficiary?
If a trustee is sued by a beneficiary, the first step is to ensure you file a timely response to the lawsuit. To ensure no deadlines are missed, contact an attorney to review your specific legal concerns.
Does a trustee have to give an accounting of trust assets?
Except for very rare circumstances where perhaps the trust document itself waives the accounting, the short answer is yes. Yes, a trustee in most cases must account to the beneficiaries.
Do I still own my assets if I place them in a Revocable Living Trust?
Yes. You are still in control of your assets so long as the Trust is revocable. To ensure that your trust is effective, you and your attorney will work closely to make sure all your assets are properly placed into your trust.
How long does it take to create a living trust?
Depending upon your schedule and availability, the process typically takes about one to two weeks.
How much does probate cost?
Probate is costly. The fees are set by statute (California Probate code section 10810) and provide for the same amount of fees to be given to the attorney for the estate and the executor. The fees are based upon a percentage of the value of the estates – the larger the estate, the higher the fees.
What are my rights as a trustee?
Being a trustee is a difficult and time-consuming position. Many people have never acted in such a role before then suddenly find themselves answering questions of often impatient beneficiaries. While trustees do have very serious obligations and duties to the beneficiaries, they also have rights in place to protect them as well. Trust documents are very specific and set out the guidelines of what the trustee can and cannot do. Trustees are entitled to invest and use trust assets at their discretion (as provided for in the trust); are entitled to hire accountants and attorneys to help them navigate their new role; and have great discretion in the administration process. If you are a trustee, it is important to consult an attorney to determine the parameters of your rights and responsibilities.
Am I entitled to payment from the trust for acting as trustee?
In most cases yes. The determination of whether you will be entitled to trustees’ fees will be based upon the trust document itself. Because the trust is a private document, the person creating the trust had the ability to state whether the trustee is entitled to compensation. So long as it is provided for in the trust, a trustee can either take a set sum per year, or a percentage of the trust assets per year. If you are the trustee of a trust, it is important to have an attorney review the trust document before you begin to pay yourself compensation. Paying yourself trustees fees when you may not have been entitled to them could be a breach of fiduciary duty and cause for removal as trustee.