How do you probate a trust if one of the heirs has used their influence to convince the decedent before her death to deed over the real property and than took all tangible assets after the decedent's death.
State/Country relating to question: California
Petition under Sec. 850 and Petition for Probate that granted only a Special Administration for 4 months.
Hello and thank you for allowing me the opportunity to assist you.Trusts are administered outside of probate. In fact, that is the advantage of a trust since most people like to avoid probate if necessary. That said, if the trust agreement was signed with undue influence (i.e., duress, force, fraud, etc.), then it can be set aside as invalid. An interested party (e.g., somebody who stands to gain by having the trust set aside) has the option of suing to have the trust declared invalid. As for the tangible assets, if the person in question should not have taken those items, then the trustee (or executor) can sue to have the items returned.If you would like any additional information or need clarification, please do not hesitate to ask! Also, I strive to be as helpful as possible so that you are satisfied. Accordingly, please remember to give me positive feedback (doing so does not end our discussion). If you feel the need to rate me poorly, please stop and instead of rating me, reply via the REPLY or CONTINUE CONVERSATION button with the issue that you have. I will be happy to continue our discussion and do everything that I can to provide you with the service that you seek.Thank you.VAMD, Esq.41091.1727085648
When you say the trust can be set aside, the property has already been taken and the thief says there is not trust because there is no trust property. Wouldn't I just be siding with her and How can I bring a suit under the trust? Maybe Financial Abuse or Constructive trust i the probate cour?
Hi again.Assuming the trust agreement states that the person who took the trust assets had that authority, then you would first have the trust declared invalid since that means the person who took the trust's assets based upon the invalid trust agreement had no right to those assets. If a court rules in your favor on that issue, the next step is suing for the return of the assets that should not have been taken. The judge could award a money judgment or a constructive trust could be created that would force the physical return of the assets. Levy's and liens could be implemented to ensure payment if the assets are still traceable.If you would like any additional information or need clarification, please do not hesitate to ask! Also, I strive to be as helpful as possible so that you are satisfied. Accordingly, please remember to give me positive feedback (doing so does not end our discussion). If you feel the need to rate me poorly, please stop and instead of rating me, reply via the REPLY or CONTINUE CONVERSATION button with the issue that you have. I will be happy to continue our discussion and do everything that I can to provide you with the service that you seek.Thank you.
Licensed to Practice Law
Now that I reviewed your answer, I think you misunderstood me. It was not that the trust was signed with undue influence - that was signed years ago. It was after the trust was signed that one of the heirs convinced the decedent to sign over all the real property to her (one of ten siblings). We went in on a Petition for Probate and got Special letters of admiistration. But the judge said to marshall the assets not to take any action. We also filed an action in the civil court, which I now understand was wrong in that probate court has exclusive jurisdiction except for individual heirs. Now I have to somehow undo all of this and sue on the trust and transfer the civil action into probate or dismiss that action and file a new action in the probate court.
Hi again.So, in a nutshell, the trust agreement was not correctly followed because one of the beneficiaries convinced the decedent (trustee?) to ignore the trust agreement and give the assets to her. If the trust was revocable, then the decedent had the power to remove the assets from the trust and give them away. If the trust was irrevocable, then the decedent did not have the power to remove the assets and ignore the trust agreement.As you mentioned, you would sue in the probate court (and I now understand that is what you meant when you said to probate the trust). What exactly is your legal question? Can you clarify that?
I want to invalidate the transfer made by the decedent during her life because she was told that if she didn't give the real property to the heir that medical would take the property. Therefore she signed over the property to one of the children and told her to distribute to all the kids. Of course this child just kept the property.
It was a revocable trust. Will a suit for financial elder abuse by one of the successor trustee or one of the beneficiaries have a chance. Also the statute of limitation is 2 years is this correct?
VAMD Esq, opted out so I will attempt to provide you with further information regarding your situation. I agree with VAMD, Esq regarding the information provided.
Unfortunately, you are dealing with a very fact specific case which will require some in depth analysis of the facts and current case law to determine whether the chances of prevailing at trial and costs associated with bringing a lawsuit is the right thing to do. A local attorney should be consulted in person to help you make this decision.
The facts would need to establish proof that the distribution of the trust property made by the Trustor/trustee was done by undue influence of the beneficiary/heir. Meaning that the transfer was the will/desire of the beneficiary/heir such that the transfer did not represent the intent of the Trustor/trustee. This can be brought under an elder abuse theory as part the trust litigation.
In addition, you would want to review the transfer of the real property (review deeds and recording) to ensure it was properly conveyed and recorded. This would be something a local attorney would be beneficial in assisting with.
The SOL for bringing a suit for fraudulent transfer of trust assets is 3 years.
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