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socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 37971
Experience:  Retired (mostly)
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My question is how do I collect items from a trust, when the

Customer Question

My question is how do I collect items from a trust, when the person does not want to release them, also to remove a person from the property that was left to me? everything is recorder in the trust of my father whom has passed 5 months ago.
Submitted: 11 months ago.
Category: Estate Law
Expert:  J. Warren replied 11 months ago.

Hello my name is ***** ***** I look forward to providing you information. Please note:

(1) this is general information and is not legal advice. I never propose a specific course of action. There is no attorney-client relationship or privilege that is formed when communicating to an expert on this site. The site repeats this disclaimer numerous times. By continuing, you confirm that you understand and agree to these terms; and

(2) there may be a slight delay between your follow ups and my reply while I am typing out my answer.

My condolences on the loss of your father. I am sorry you are dealing with this situation. Unfortunately, you find yourself in the position of needing local counsel to seek a court order against the trustee of the trust to distribute the assets of the trust, or if you are the trustee, a court order to force the person in possession of trust assets to transfer them to you. While you have the right to possession as a beneficiary, if the person in possession is not being reasonable and refuses to comply with the law, you will need a court order.

As to possession of real estate, you will need to seek an eviction order to have them removed. This requires an unlawful detainer lawsuit to be filed regardless of whether you hold title to the property. While this seems unfair, and in this case is indeed not fair, it is the process that is needed to avoid your risk of a lawsuit for a wrongful eviction. here is a link to the eviction process: http://www.dca.ca.gov/publications/landlordbook/evictions.shtml

In addition, here is a link to the California Bar Association Lawyer Referral Service to assist you with contacting a lawyer in your area for purposes of seeking an order should the person in possession of the assets and property not willingly comply with your requests: http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

All my best & encouragement.

Thank you for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. Please note that you are asked to rate my courtesy and professionalism, and not whether the answer supports your legal position. I only receive credit when rated “ok” (3 stars) or higher. If for any reason you feel that a low rating is appropriate, please first give me the opportunity to address your concerns by clicking the "reply" tab.

All states have intricacies in their laws and any information given is simply information only and specifically is not intended to be, nor does it constitute, legal advice. This communication does not establish an attorney-client relationship with you

Customer: replied 11 months ago.
I am the trustee, trying to collect, the wife who is not in the trust is the one not releasing the items from the house.
Customer: replied 11 months ago.
beside the eviction is there a specific form to fill out for the items in the trust, and to evict her do I need the original trust documents when filing?
Expert:  J. Warren replied 11 months ago.

Thank you for following up. With the new information I am sorry I am going to have to opt out and open the question up for a lawyer more familiar with the spousal rights and community property rights. This complicates matters that the spouse is in possession of items and living in the property. Regardless of what the trust states, she may have rights.

Expert:  socrateaser replied 11 months ago.

Hello,

Different contributor here. I am a member of the State Bar of California, the bar of the U.S. District Court for the Central District of California, and the California and National Association of Realtors. Please permit me to assist.

The general rule with respect to trusts is that a surviving spouse has no rights in trust property of the decedent spouse, unless: (1) the surviving spouse proves that the trust holds community property to which the surviving spouse has a 50% ownership interest; or (2) the surviving spouse was married to the the decedent spouse, after the trust was originally created.

Assuming that neither of the above is true, then the trustee of the trust can provide the spouse with 30 day notice of termination of tenancy at will, and then commence an unlawful detainer action to remove the spouse from the property.

Concerning personal property held by the surviving spouse, and not already assigned to the trust by the decedent spouse, and again, assuming that she has no community property interest, you would have to open a probate administration so that the court could determine the respective ownership rights of the surviving spouse, and the decedent's other heirs.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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