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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 36345
Experience:  Texas lawyer for 30 years in Estate law
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I have an adversarial trustee of a trust in which I am a

Customer Question

I have an adversarial trustee of a trust in which I am a beneficiary. Everything has been settled except the transfer of real property to some one's other than me. It is almost a year and the bequest was written for helping me live comfortably. With no funds distributed he is not following the wishes spelled out in the trust. What are the options in California
JA: Handling a trust can seem complicated, but getting the right information now can only help. Because laws vary from state to state, could you tell me what state is this in?
Customer: As I said California
JA: Have you consulted a lawyer yet?
Customer: No
JA: Is there anything else important you think the Estate Lawyer should know?
Customer: Adversarial, not following the wishes and seeking to delay rather than fulfill her wishes. No. Nearly a year with nothing done.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Estate Lawyer about your situation and then connect you two.
Submitted: 5 months ago.
Category: Estate Law
Expert:  RayAnswers replied 5 months ago.
Hi and welcome to JA. Ray here to help you today. California provides for you to seek remedies through the Superior's Courts .A trustee can be removed and a trust can also be terminated. Removal 15642. (a) A trustee may be removed in accordance with the trustinstrument, by the court on its own motion, or on petition of asettlor, cotrustee, or beneficiary under Section 17200. (b) The grounds for removal of a trustee by the court include thefollowing: (1) Where the trustee has committed a breach of the trust. (2) Where the trustee is insolvent or otherwise unfit toadminister the trust. (3) Where hostility or lack of cooperation among cotrusteesimpairs the administration of the trust. (4) Where the trustee fails or declines to act. (5) Where the trustee's compensation is excessive under thecircumstances. (6) Where the sole trustee is a person described in subdivision(a) of Section 21350 or subdivision (a) of Section 21380, whether ornot the person is the transferee of a donative transfer by thetransferor, unless, based upon any evidence of the intent of thesettlor and all other facts and circumstances, which shall be madeknown to the court, the court finds that it is consistent with thesettlor's intent that the trustee continue to serve and that thisintent was not the product of fraud or undue influence. Any waiver bythe settlor of this provision is against public policy and shall bevoid. This paragraph shall not apply to instruments that becameirrevocable on or before January 1, 1994. This paragraph shall notapply if any of the following conditions are met: (A) The settlor is related by blood or marriage to, or is acohabitant with, any one or more of the trustees, the person whodrafted or transcribed the instrument, or the person who caused theinstrument to be transcribed. (B) The instrument is reviewed by an independent attorney who (1)counsels the settlor about the nature of his or her intended trusteedesignation and (2) signs and delivers to the settlor and thedesignated trustee a certificate in substantially the following form: "CERTIFICATE OF INDEPENDENT REVIEW I, ___________________ , have reviewed (attorney's name) ______________________ and have counseled my (name of instrument) client, __________________ , fully and privately on the (name of client) nature and legal effect of the designation as trustee of ___________________ (name of trustee) contained in that instrument. I am so disassociated from the interest of the person named as trustee as to be in a position to advise my client impartially and confidentially as to the consequences of the designation. On the basis of this counsel, I conclude that the designation of a person who would otherwise be subject to removal under paragraph (6) of subdivision (b) of Section 15642 of the Probate Code is clearly the settlor's intent and thatintent is not the product of fraud, menace, duress, or undue influence. ____________________ ________________ " (Name of Attorney) (Date)
Expert:  RayAnswers replied 5 months ago.
Judge can terminate trust based on change in circumstances.. 5409. (a) On petition by a trustee or beneficiary, the court maymodify the administrative or dispositive provisions of the trust orterminate the trust if, owing to circumstances not known to thesettlor and not anticipated by the settlor, the continuation of thetrust under its terms would defeat or substantially impair theaccomplishment of the purposes of the trust. In this case, ifnecessary to carry out the purposes of the trust, the court may orderthe trustee to do acts that are not authorized or are forbidden bythe trust instrument. (b) The court shall consider a trust provision restrainingtransfer of the beneficiary's interest as a factor in making itsdecision whether to modify or terminate the trust, but the court isnot precluded from exercising its discretion to modify or terminatethe trust solely because of a restraint on transfer.15410. At the termination of a trust, the trust property shall bedisposed of as follows: (a) In the case of a trust that is revoked by the settlor, thetrust property shall be disposed of in the following order ofpriority: (1) As directed by the settlor. (2) As provided in the trust instrument. (3) To the extent that there is no direction by the settlor or inthe trust instrument, to the settlor, or his or her estate, as thecase may be. (b) In the case of a trust that is revoked by any person holding apower of revocation other than the settlor, the trust property shallbe disposed of in the following order of priority: (1) As provided in the trust instrument. (2) As directed by the person exercising the power of revocation. (3) To the extent that there is no direction in the trustinstrument or by the person exercising the power of revocation, tothe person exercising the power of revocation, or his or her estate,as the case may be. (c) In the case of a trust that is terminated by the consent ofthe settlor and all beneficiaries, as agreed by the settlor and allbeneficiaries. (d) In any other case, as provided in the trust instrument or in amanner directed by the court that conforms as nearly as possible tothe intention of the settlor as expressed in the trust instrument. (e) If a trust is terminated by the trustee pursuant tosubdivision (b) of Section 15408, the trust property may bedistributed as determined by the trustee pursuant to the standardprovided in subdivision (d) without the need for a court order. Ifthe trust instrument does not provide a manner of distribution attermination and the settlor's intent is not adequately expressed inthe trust instrument, the trustee may distribute the trust propertyto the living beneficiaries on an actuarial basis. You have rights to resolve this and remove trustee or terminate trust or both.You will need local lawyer to file where the trust is located.
Expert:  RayAnswers replied 5 months ago.
Lawyer for you here I appreciate the chance to help you tonight.Thanks again.

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