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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 24259
Experience:  14 yrs estate law, real estate. Wills/Trusts/Probate
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The actors in a California Trust. 1. Brother 1 – recently

Customer Question

The actors in a California Trust. 1. Brother 1 – recently deceased, brother in law to my mother. His wife is also deceased. They had no children. 2. Brother 2 married to my mother for 35 years. Brother 1 contested his brother’s inheritance, claiming his brother was mentally incompetent as a 100% disabled Viet Nam vet. 3. Mother of brother 1 & 2 loved both sons equally and might have stated that in her will which I am awaiting from the LA Superior Court. The trust is in both mother's and brother's 2 names. Brother 2 did not fight brother 1 for his rights. He had neither the power nor resources to do so. 3. Nephew (brother 2 had a son before he married my mother). We didn’t find out about him until the Trustee lawyer informed us. Neither of the two brothers had a relationship or contact with the boy. 4. Trustee Lawyer. Question: The trustee lawyer said that my mother, who lives in Colorado, is not an heir by law & that the nephew is. He said he has sent notice to the nephew; however, will not say whether he’s sending notice to my mother. However, based on the fact that brother 1 built a small empire on his inheritance and the inheritance he stole from his brother (my mother’s deceased husband), might my mother be included as a rightful heir? Also, her husband (brother two) raised five stepchildren (including me), but never legally adopted them. The trust makes no provisions for the nephew or for my mother.

Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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If this is a trust then it doesn't matter who the heirs at law might be unless the trust states that only heirs at law inherit. A trust is not controlled by the probate court and is administered by the trustee in accordance to the terms of the trust.
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based on the fact that brother 1 built a small empire on his inheritance and the inheritance he stole from his brother (my mother’s deceased husband), might my mother be included as a rightful heir?
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Unfortunately no. Unless the trust directs that your mother is to receive something, then she wouldn't be a beneficiary. Even if her husband was still alive, if the trust didn't leave him anything, then he wouldn't inherit. Trust assets only go to the specifically named beneficiaries in the trust, not by operation of the law. Now if the trust said that Brother 2 was to inherit $XXX and he was married when he died, then his wife would inherit some or all of whatever Brother 2 would inherit.
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Although it is despicable, if Brother 1 was somehow able to legally get all the inheritance through the courts, then Brother 2 would no longer have any legal claim to the assets.
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When Brother 1 died without any children or spouse, then whatever he owned would pass either by his will or through the state laws on intestacy. If his parents are deceased, and his sibling Brother 2 is deceased, then the next class of heirs would be nieces and nephews. If there is only one nephew, then he would inherit Brother 1's entire estate.
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But whatever is in the trust would go to whoever is named as a beneficiary in the actual trust documents.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Barrister, Attorney
Category: Estate Law
Satisfied Customers: 24259
Experience: 14 yrs estate law, real estate. Wills/Trusts/Probate
Barrister and 3 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

A couple hours ago, I asked you if my mother was a rightful heir to her brother-in-law's trust because he (brother 1) stole his brother's (my mother's husband, brother 2, also deceased, ) inheritance. You said brother 1's nephew (from my mother's husband, i.e., brother 2) was an heir by law, but not my mother. What about brother 2's stepchildren that he raised? I'm asking because I found that "Foster & stepchildren CAN inherit if the relationship started when the children were minors & continued throughout a lifetime."

Expert:  Barrister replied 1 year ago.
Are we talking about an actual Revocable or Irrevocable Trust or who inherits his estate if he didn't have a will? They are two completely different things...
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Thanks
Barrister
Customer: replied 1 year ago.

Thank you for your help....


 


First, the trustee lawyer hasn't said whether the trust is revocable or irrevocable. Shall I send him an email and tell him that Don, the younger brother (brother 2) had stepchildren?


 


Next, I don't yet know if there is a will the mother might have left, nor do I know if there's a will that the older brother left (or his wife for that matter). I mailed a L.A. Superior Court for copies of those three wills if indeed they do exist. I'm still waiting as of 3 days ago....

Expert:  Barrister replied 1 year ago.
Ok, if we are talking about a Trust, then the trust would control who got what in it's terms. It doesn't matter who are the heirs at law of Brother 1, it only matters what the Trust says about who the beneficiaries are. If Brother 1 set up the Trust, he could leave his assets to his family, the church, a local hospital, etc. and doesn't have to leave it to his heirs at law if he chose not to.
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The only caveat is that if the Trust leaves assets to a beneficiary who is deceased, then the deceased beneficiary's heirs would then "step into the shoes" of the deceased and inherit their gift from the Trust.
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If this was the case, then stepchildren from a predeceased spouse can inherit, but only if there is no one with a higher priority claim to the estate. Nephew would stand in a higher priority to Brother 1 under CA intestate law and would inherit everything if there are no other heirs with a higher priority.
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CA Intestate Succesion Law Probate Code, Division 6, Part 2

(c) If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(d) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of those grandparents if there is no surviving grandparent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(e) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by the issue of a predeceased spouse, to that issue, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
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Under (c) the issue of parents would be Brother 2, and his son, Brother 1's nephew would be in a more remote degree than Brother 2.
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These statutes go in order of who takes first. So C takes before D who takes before E, where stepchildren are listed.
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Thanks
Barrister
Customer: replied 1 year ago.

Okay, I understand the order of heirs at law. However, and as noted, the older brother (1) did not make provisions for his nephew, for my mother, or for stepchildren of the younger brother (2) per the trustee lawyer.



The trustee lawyer also said that the nephew as nonetheless an heir by right and that the trustee sent notice to him. He also asked me to inform him of any other potential heirs; yet, I'm not sure if that would include my siblings and me.


 


Thus, should I or should I not send the names of stepchildren to the trustee?


 


I understand that the nephew has precedent...but am wondering if the stepchildren are nonetheless still entitled to portion of the inheritance.


 


I apologize for all these questions.... I shouldn't have any more after this.


 


Thank you.


 


 


 

Expert:  Barrister replied 1 year ago.

Thus, should I or should I not send the names of stepchildren to the trustee?

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Yes, there is no harm in doing so because if he put some directive in the trust that said "divide all assets by all heirs at law, regardless of priority" then stepchildren could inherit. I would list everyone and let the Trustee sort it out as to who inherits from the Trust.

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Thanks

Barrister

Customer: replied 1 year ago.

You're amazing! Thank you for your help! Melony.

Expert:  Barrister replied 1 year ago.
Thank you. You are very welcome.
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Barrister
Customer: replied 1 year ago.

The trustee lawyer just informed me that the older brother's (brother 1) trust became irrevocable at death. The trustee lawyer also said that unless my stepfather (the younger brother/brother 2) adopted us, the trustee has no obligation to provide me or my siblings with notice. However, after reading the California Probate Code (it's copied & pasted after this question) I beg to differ, although I might be wrong. Here's why: my siblings & I should be heirs by laws, as is my step-dad's biological son (the blood nephew of the older brother/1) because my stepfather raised us during our entire childhood, never divorced my mom, & we got his VA benefits. He would have adopted us if not for his mental illnesses (PTSD & paranoid schizophrenia). Thus, shouldn't the trustee lawyer (of the older brother's estate) view the stepchildren as heirs by law (as much as the nephew by blood to the older brother) and send us notice, as well? He sent notice already to the nephew. By the way, NO provisions were made in the trust for either the nephew or the stepchildren.

 

California Probate Code, Section 21115, Last modified Feb.22, 2013.

(a) Except as provided in subdivision (b), halfbloods, adopted persons, persons born out of wedlock, stepchildren, foster children, and the issue of these persons when appropriate to the class, are included in terms of class gift or relationship in accordance with the rules for determining relationship and inheritance rights for purposes of intestate succession. (b) In construing a transfer by a transferor who is not the natural parent, a person born to the natural parent shall not be considered the child of that parent unless the person lived while a minor as a regular member of the household of the natural parent or of that parent's parent, brother, sister, spouse, or surviving spouse. In construing a transfer by a transferor who is not the adoptive parent, a person adopted by the adoptive parent shall not be considered the child of that parent unless the person lived while a minor (either before or after the adoption) as a regular member of the household of the adopting parent or of that parent's parent, brother, sister, or surviving spouse (c) Subdivisions (a) and (b) shall also apply in determining: (1) Persons who would be kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor underSection 21110. (2) Persons to be included as issue of a deceased transferee underSection 21110. (3) Persons who would be the transferor's or other designatedperson's heirs under Section 21114. (d) The rules for determining intestate succession under thissection are those in effect at the time the transfer is to takeeffect in enjoyment.From: http://law.onecle.com/california/probate/21115.html

Section: Previous 21101 21102 21103 21104 21105 21107 21108 21109 21110 21111 21112 21114 21115 21117 21118 Next

Here’s something else: In California. In 1983, California enacted the first intestacy provision that creates a share for stepchildren regardless of whether other heirs exist. A stepchild can inherit if three requirements are met: (1) a parent-child relationship began while the child was a minor (the statute does not define “parent-child relationship);” (2) the parent-child relationship continued throughout the joint lifetimes of the child and parent, and (3) the parent would have adopted the child but for a legal barrier. After a split in the lower courts, the California Supreme Court interpreted this last requirement to mean that the legal impediment to adoption persisted until the parent’s death. See Estate of Joseph, 949 P.2d 472 (Cal. 1998). This interpretation significantly limits the utility of the statutory provision. After a stepchild reaches the age of majority, the stepchild herself can give permission for an adoption and in most cases a legal impediment to adoption will no longer exist. Of course, adoption of an adult stepchild, regardless of the closeness of the relationship, is unlikely. Unless the stepparent dies while the stepchild is a minor, the statute will have little impact.

Expert:  Barrister replied 1 year ago.
The trustee lawyer just informed me that the older brother's (brother 1) trust became irrevocable at death.
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This is standard once the grantor passes as no further changes can be made to the trust.
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I would agree that the stepchildren would be heirs at law under an intestate situation. But this involves a trust, so it is not an intestate estate. When someone puts assets into a trust, it takes those assets out of their estate and the trust directives determine who gets what. Similar to a will where the testator decides who gets their assets, in a trust, the grantor who drafted the trust decides who gets what. Since the brother would have put some directions as to who gets the assets, it is not an intestate estate.
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The trustee of a trust only has to divulge information to the grantor (if alive) and any beneficiaries. So if the stepchildren aren't named in the trust as beneficiaries, then they legally wouldn't be entitled to any information about the trust. The confidentiality of a trust is one of the primary reasons people set them up.
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Thanks
Barrister
Customer: replied 1 year ago.

All right then, and thank you... however, the trustee lawyer clearly stated that the trust made NO provisions for the nephew either. Nonetheless, the trustee is calling the nephew an "heir by law" and his uncle did not


put some directions as to who gets the assets.


 


I'm trying to figure out whether it is worth retaining a lawyer in the jurisdiction of CA.

Expert:  Barrister replied 1 year ago.
I find it odd that brother would go to the time and expense of having a trust drafted naming a trustee to administer the trust, and not name any beneficiaries. It kind of defeats the entire purpose of having a trust. The two main reasons are confidentiality and that the assets in the trust avoid having to go through probate and are transferred directly to the beneficiaries.
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Something sounds funny about this and it might be worthwhile to get a CA estate law atttorney involved as the trustee may be more willing to respond to the attorney than he is to you.
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The only thing I can think of that might explain it is that brother 1 left his estate to brother 2 and since brother 2 is deceased, the trustee is trying to track down the heirs of brother 2. But this is strictly speculation on my part since we don't know what the trust says.
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Thanks
Barrister
Customer: replied 1 year ago.

Yes, it is unusual that he made provisions for no-one, including his nephew. You might be right, though about the younger brother, because the trust was in the mother's name as well as the older brother's name.


 


Thank you.

Expert:  Barrister replied 1 year ago.
You are very welcome. Best of luck in unravelling this mystery.
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Thanks
Barrister
Customer: replied 1 year ago.

Everything you said was accurate and correct. I verified your feedback with more than one attorney in the jurisdiction of California. In other words, stepchildren are ineligible unless they're named in the trust or unless they were adopted. Another variable in a stepchild's favor is the relationship they shared with the deceased person named in the trust/estate. Moreover, if there are no other blood-related heirs by law, then stepchildren stand a chance of inheriting based on succession law.

 

Expert:  Barrister replied 1 year ago.
I am glad you were able to verify the accuracy of the information I provided. I am sorry that it didn't turn out as well as you had hoped.
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Thanks
Barrister

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Barrister
Barrister
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14 yrs estate law, real estate. Wills/Trusts/Probate