My Mother has a Living Trust set up in CA.. She no longer…

Well, if she knows who the trustee is, all she has to do is deliver a written notice to him/her stating that she is terminating and revoking the trust. If there are any assets in it, the trustee would then have to convey them back to her personal name out of the trust.

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She can then either create a new trust, or can have a will drafted to do the same thing. The benefit of a trust is that the assets don't have to go through probate and be tied up for 6 mos - 1 year before they can be distributed. Also it is a private document and not subject to public inspection like a will. The down side is that it is more expensive for a trust to be drafted initially.

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However, if the other trust is already in existence, there is nothing that would prevent her from simply amending it to reflect the changes. A CA trust is valid in any state so if she just made changes to it, that would avoid the expense of a new trust or will. She would simply have an amendment to the trust drafted and then physically attach it to the original trust documents as well as delivering a copy to the trustee.

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But if she is going to do something new, I prefer trusts so the heirs can avoid the expense and time that probating an estate takes.

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thanks

LAwpro

No, a Trustee and an Executor are two distinctly different offices with similar duties. The Trustee has a fiduciary duty to manage a trust according to its stated terms and theoretically his role can go on indefinitely until the trust either runs out of "corpus" (assets), is terminated by the court, or achieves its stated purpose.

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An Executor, by contrast, is a position with a finite life and his role is to settle the estate by following any stated directions in a will, paying all debts of the estate, and then distributing the assets to the remaining beneficiaries. An Executor's duties will typically last around a year.

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They both have a fiduciary duty to manage the assets under their control for the benefit of the estate/trust and for the benefit of any beneficiaries. If they breach this duty, they can be held personally liable for any damages due to their mismanagement.

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The trustee would have to reconvey any assets in the trust if it were revoked. If she just amends it, then it would continue in force subject to the amendments.

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As for getting copies of the trust, if you can't find mom's copy or the attorney who drafted it, your last chance would be to get a copy from the Trustee, who should have been given a copy so he would know what his duties were.

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Any assets that are in the trust, or proceeds from the sale of assets in the trust that were then placed back into it would be subject to the terms of the trust. So basically anything that is still in the trust is subject to it. If assets have been sold and the money disbursed out of the trust to beneficiaries, then they are no longer trust assets and not subject to its control and ownership. But if there is no longer any assets in the trust, it then "dies" and is no longer in existence. Think of it as a fictional person who has to have assets in their name in order to keep living. When all the assets are gone, it dies.

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At this stage, if you can't find a copy or obtain one from the attorney or trustee, it would be best to simply revoke it by sending a letter to the trustee stating that mom is revoking the trust and all assets in it (if any) would need to be reconveyed to her. Then she can start over fresh.

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thanks

Lawpro

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