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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Legal
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Experience:  B.A.; M.B.A.; J.D.
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My father (Pasadena, CA) established a family trust that described

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My father (Pasadena, CA) established a family trust that described control and disposition of a cabin in the desert a long time ago. The cabin was to have been shared by the children, and not sold as part of probate. None of the children has a copy. He subsequently married, and we were told that there was a pre-nup that prohibited transfer of the cabin to the new wife or sale. Again, we don't have a copy. Now he has Alzheimers, and is incompetent. The wife plans to sell the cabin. Is there anything the children can do to identify and preserve any rights they have under these documents?

 

Thank you for giving me the opportunity to assist you. I encourage you to ask me for clarification, if you are not clear with my Answer.

 

Question: My father (Pasadena, CA) established a family trust that described control and disposition of a cabin in the desert a long time ago. The cabin was to have been shared by the children, and not sold as part of probate. None of the children has a copy. He subsequently married, and we were told that there was a pre-nup that prohibited transfer of the cabin to the new wife or sale. Again, we don't have a copy. Now he has Alzheimers, and is incompetent. The wife plans to sell the cabin. Is there anything the children can do to identify and preserve any rights they have under these documents?

 

Response: First and foremost, if the trust is revocable and the Settlor (:Grantor") of the trust is now incompetent and therefore can no longer revoke the trust, then the trust is now irrevocable. The trust is not a community property and thus his wife does not have any right to dispose of it without the children's consent since your father is now incompetent. In the interim, a lawsuit should be filed against the wife to prevent her from selling the separate property of your father and to force her to produce copies of the family trust, any document revoking the trust and copy of the prenuptial agreement. A copy of this lawsuit must be recorded in the County/City Recorder's Office to give notice to any potential purchaser that the property is in litigation ("notice of lis pendence"). You can get a local probate litigation lawyer to file the lawsuit for you:

 

http://www.lawyers.com/

 

http://www.justia.com/

 

http://www.attorneypages.com/

 

 

Customer: replied 6 years ago.
Thanks, that's encouraging.

When I said father was incompetent, I should have also said that he hasn't been DECLARED incompetent (yet). Does that change things? That is, what if she has him sign something? Even though he can't understand - would that be legally valid? Should the children seek a declaration or custodian assignment, or is the wife driving this bus?

The property is in San Diego county, and father/wife live in Los Angeles county. If I understood properly, you are suggesting the children file suit in San Diego county so the notice can be recorded with the deed - is that correct?

Finally, the trust copy that I read said that his wife would be the first successor trustee, with the children following, and that the property could not be sold until the last child passed away. Just fur further information.

When I said father was incompetent, I should have also said that he hasn't been DECLARED incompetent (yet). Does that change things?

 

Response 1: Unfortunately yes.

 

That is, what if she has him sign something?

 

Response 2: Yes.

 

Even though he can't understand - would that be legally valid?

 

Response 3: No, it would not. However, you would have to challenge it for the record, in Court as a financial abuse.

 

Should the children seek a declaration or custodian assignment, or is the wife driving this bus?

 

Response 4: The children should seek declaration and cite financial abuse as one of the reasons.

The property is in San Diego county, and father/wife live in Los Angeles county. If I understood properly, you are suggesting the children file suit in San Diego county so the notice can be recorded with the deed - is that correct?

 

Response 5: Yes, that is correct.

 

Finally, the trust copy that I read said that his wife would be the first successor trustee, with the children following, and that the property could not be sold until the last child passed away. Just fur further information.

 

Response 6: Good information, but just a start. You would need copies of all relevant documents. I am afraid that the wife is trying to pull a fast one here. However, the lawsuit should put a break to it.

Customer: replied 6 years ago.
Thank you.

Do you think I should ask a California expert instead? That is, are the laws different in California, and are you familiar enough with the differences between CA and MA that I should tr? ust your advice?

It seems sound to me, but I wonder if there isn't some over-arching California law that would make the suggested course of action futile.



Do you think I should ask a California expert instead? That is, are the laws different in California, and are you familiar enough with the differences between CA and MA that I should tr? ust your advice?

It seems sound to me, but I wonder if there isn't some over-arching California law that would make the suggested course of action futile.


Response: It is your call to get a second opinion from a California Expert. However, I stand by my prior response.
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