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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
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Experience:  Wills, Trusts, Probate & other Estate Matters
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Im in California but need to make sure that my trust fulfills

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I'm in California but need to make sure that my trust fulfills the legal needs of Louisiana. For a trust to be legally valid in CA, only the grantor and the trustee need sign it. It isn't required to notarize or have the trust witnessed by third parties. For a trust to be considered legally valid in LA, does a it have to have to be notarized or witnessed?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Loren replied 1 year ago.
Thank you for using JustAnswer. I am JudgeLaw and I will do whatever I can to answer your question and provide you excellent service.

A trust which is valid in California will also be valid in Louisiana. It is not required in either state that the trust document be notarized or witnessed.

I hope this is helpful. If you have more follow up questions please let me know. It is never a problem.

Thank you.

JudgeLaw
Customer: replied 1 year ago.

Thanks so much ...sorry for the delay ... I got tied up in a meeting. I just found more info (see links below) which seem to indicate that a notary and witness are required in Louisiana. Is there any way around that?


 


http://law.justia.com/codes/louisiana/2006/123/106755.html


 


http://caselaw.findlaw.com/la-court-of-appeal/1134351.html


 

Expert:  Thomas McJD replied 1 year ago.
Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

A trust created while you were a resident of CA and that is valid in CA will also be valid in LA although if you had been a resident of LA and executed a trust there it would have needed to be witnessed. Thus, although your trust is not witnessed and notarized it is valid so long as it was valid in CA.

§2262.4. Form

A trust instrument executed outside this state in the manner prescribed by, and in conformity with, the law of the place of its execution, or the law of the settlor's domicile, at the time of its execution shall be deemed to be legally executed and shall have the same force and effect in this state as if executed in the manner prescribed by the laws of this state, provided the trust instrument is in writing and subscribed by the settlor.

http://legis.la.gov/lss/lss.asp?doc=107029

Customer: replied 1 year ago.

To TMcJD ....


 


Wow. That threw me for a loop. I couldn't reconcile that bit of code with what the Court said in the case I linked (Succession of Voorhies v. Voorhies). After looking closer, I realized that §2262.4 is evidently part of LA Uniform Custodial Trust Codes (§2260.1 to 2260.21), which isn't succession related and seems to provide parameters similar to the national version of that the Uniform Trust Code Act (whereby trust property can be held for a beneficiary -- usually a minor or someone incapacitated -- and while can't be terminated by a transferor, can be terminated at will by the beneficiary). It's seems like a totally different "animal" than the one I'm dealing with. It looks like §§1721 to 2252 are part of a different section of codes called LA Uniform Trust Codes, which covers estate planning trusts (inter vivos and testamentary trusts) that are made for succession purposes ... and I'm dealing with an inter vivos trust, which leads me to believe it falls under §1752. And, if that's so, than the requirement seems to be for the signature of the settlor to be 1) witnessed by two witnesses and notarized at the same time, 2) witnessed by two witnesses and acknowledged by the settlor at the same time, or 3) witnessed by two witnesses and acknowledged by the affadavit of one of the witnesses at the same time.


 


OK. Sorry for all that. I realize that I'm taking more of your time than either of us expected ... it wasn't my intention. I thought it would be clearer, simpler, and faster. Would you mind just confirming my interpretation of all that, as written above?

Expert:  Thomas McJD replied 1 year ago.

The trust code provisions apply to intervivos and testamentary trusts (revocable or irrevocable). The provisions I provided are not part of the trust code but apply to the same trusts. It's a more general area of the law. It is miscellaneous trust legislation that is newer to LA law. So long as your trust in CA was valid, it is valid in LA.

 

http://www.lsba.org/2007Solo/update.pdf

Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 6504
Experience: Wills, Trusts, Probate & other Estate Matters
Thomas McJD and 3 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Oh, this is so confusing!! :) The document you linked (which was authored in 2001) specifically says "Most probably new R.S. 9:2262.1-.4 only applies to the trustee’s authority to convey trust property to third persons." Additionally, in the 2003 case of the Succession of Voorhies v. Voorhies, the Court says the Plaintiff "also argues that, if we do not accept her interpretation of Section 1752, it is 'unclear,' and we must resort to the laws of Arizona to determine whether The Trust is valid" ... but patently ignored even discussing what the laws of Arizona were even though the trust was executed in Arizona when the settlor's lived there ... and stuck to the core issue of whether the trust was valid in form under Louisiana law.

Expert:  Thomas McJD replied 1 year ago.

The law to which I referred you did not exist at the time the case you cite was brought before the courts so it wouldn't have been discussed although it did exist at the time the decision was made. It would have needed to exist at the time the validity of the trust was brought before the court.

 

Besides, if there is no death yet, then just republish the trust terms by incorporation by reference into a one page document that is signed and witnessed according to LA law. That solves all the problems and then there's no need to worry about conflicts of law between the two states.

Customer: replied 1 year ago.

It looks like Act 890 was effective September 15, 2001. In the Succession of Voorhies v Voorhies, it says that "In September 2001, an exemplified copy of his Last Will was filed in the records of the Clerk of Court for St. Martin Parish to open an ancillary probate" ... so, surely R.S. 9:2262.1-.4 existed at the time the validity of the trust was brought before the court.

Customer: replied 1 year ago.

Sorry, but I just felt like I was getting the run around to defend what seems to have been the wrong answer ...

Expert:  Thomas McJD replied 1 year ago.
I don't know how I provided poor service. I provided accurate information that was based on a review of the case and the correct effective date of the law I cited. That law is controlling, as noted, and means that a trust is valid in LA so long as executed in conformance with laws outside the state. I I can provide further clarification, let me know and I'd be happy to assist you, but I did provide accurate information.
Customer: replied 1 year ago.

To TMcJD ...


 


Sorry if I'm misunderstanding things TMcJD ...


1) You said "The law to which I referred you did not exist at the time the case you cite was brought before the courts so it wouldn't have been discussed although it did exist at the time the decision was made." ... but the law was effective 9/15/2001 and the appellate case I sighted indicated that Louisiana probate was opened in Sept 2001, so the would have had to have existed when the case was brought before the trial court and the appellate court.


2) You cited the discussion points raised in Professor Cynthia A. Samuel's November 2001 document as supporting your position but her document specifically states that "Most probably new R.S. 9:2262.1-.4 only applies to the trustee’s authority to convey trust property to third persons."


3) The errors above made me question whether your assessment was correct .... maybe you are right. Openly, I don't know. §2262.1-.4 specifically deals with foreign trusts. §1752 specifically deals with inter vivos trusts. Which one would be held to be more applicable, I can't say and it just seems like you're making an assumption without having much support. That said, let me see if I can change my rating. Clearly, your service itself was not poor. I just don't think there is a clear answer and I would have preferred you said that, if there wasn't a definitive answer to my question.

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