Estate Law

Estate Law Questions? Ask an Estate Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Estate Law

This question is trust laws. Father recently

Customer Question
This question is for California...
This question is for California trust laws. Father recently passed away. Mother has early onset dementia is 88 years old. Daughter has been placed as agent for mother on durable poa son is executer, this was done in 2011, should mother not relinquish her power over to son to become successor trustee does the daughter as agent have authority without protest to take care of (ie; pay bills, manage business, care for her, etc..) ?? Or does the son have to relinquish his authority in this area of care and finance to the agent of the dpoa? The only person listed on the dpoa is the daughter, which covers all areas of finance, personal care of mother and the business they still own.
Submitted: 2 years ago.Category: Estate Law
Show More
Show Less
Ask Your Own Estate Law Question
Answered in 16 minutes by:
6/6/2015
Estate Lawyer: RayAnswers, Attorney replied 2 years ago
RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 43,505
Experience: Texas lawyer for 30 years in Estate law
Verified
Hi and welcome to JA. I am Ray and will b e the expert helping you today.

I would agree with you that mother should relinquish her office here as successor trustee.
She lacks the capacity to carry out the duites of this title.If she will not agree here the beneficiaries can petition the court in California tp remove her from being trustee.

This falls under 16542(2)..arguably she is unfit here and the court would see that..
(2) Where the trustee is insolvent or otherwise unfit to administer the trust.
15640. A trustee who has accepted the trust may resign only by one of the following methods: (a) As provided in the trust instrument. (b) In the case of a revocable trust, with the consent of the person holding the power to revoke the trust. (c) In the case of a trust that is not revocable, with the consent of all adult beneficiaries who are receiving or are entitled to receive income under the trust or to receive a distribution of principal if the trust were terminated at the time consent is sought. If a beneficiary has a conservator, the conservator may consent to the trustee's resignation on behalf of the conservatee without obtaining court approval. Without limiting the power of the beneficiary to consent to the trustee's resignation, if the beneficiary has designated an attorney in fact who has the power under the power of attorney to consent to the trustee's resignation, the attorney in fact may consent to the resignation. (d) Pursuant to a court order obtained on petition by the trustee under Section 17200. The court shall accept the trustee's resignation and may make any orders necessary for the preservation of the trust property, including the appointment of a receiver or a temporary trustee. 15641. The liability for acts or omissions of a resigning trustee or of the sureties on the trustee's bond, if any, is not released or affected in any manner by the trustee's resignation. 15642. (a) A trustee may be removed in accordance with the trust instrument, by the court on its own motion, or on petition of a settlor, cotrustee, or beneficiary under Section 17200. (b) The grounds for removal of a trustee by the court include the following: (1) Where the trustee has committed a breach of the trust. (2) Where the trustee is insolvent or otherwise unfit to administer the trust. (3) Where hostility or lack of cooperation among cotrustees impairs the administration of the trust. (4) Where the trustee fails or declines to act. (5) Where the trustee's compensation is excessive under the circumstances. (6) Where the sole trustee is a person described in subdivision (a) of Section 21350 or subdivision (a) of Section 21380, whether or not the person is the transferee of a donative transfer by the transferor, unless, based upon any evidence of the intent of the settlor and all other facts and circumstances, which shall be made known to the court, the court finds that it is consistent with the settlor's intent that the trustee continue to serve and that this intent was not the product of fraud or undue influence. Any waiver by the settlor of this provision is against public policy and shall be void. This paragraph shall not apply to instruments that became irrevocable on or before January 1, 1994. This paragraph shall not apply if any of the following conditions are met: (A) The settlor is related by blood or marriage to, or is a cohabitant with, any one or more of the trustees, the person who drafted or transcribed the instrument, or the person who caused the instrument 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 trustee designation and (2) signs and delivers to the settlor and the designated 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) This independent review and certification may occur either before or after the instrument has been executed, and if it occurs after the date of execution, the named trustee shall not be subject to removal under this paragraph. Any attorney whose written engagement signed by the client is expressly limited to the preparation of a certificate under this subdivision, including the prior counseling, shall not be considered to otherwise represent the client. (C) After full disclosure of the relationships of the persons involved, the instrument is approved pursuant to an order under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division 4. (7) If, as determined under Part 17 (commencing with Section 810) of Division 2, the trustee is substantially unable to manage the trust's financial resources or is otherwise substantially unable to execute properly the duties of the office. When the trustee holds the power to revoke the trust, substantial inability to manage the trust' s financial resources or otherwise execute properly the duties of the office may not be proved solely by isolated incidents of negligence or improvidence. (8) If the trustee is substantially unable to resist fraud or undue influence. When the trustee holds the power to revoke the trust, substantial inability to resist fraud or undue influence may not be proved solely by isolated incidents of negligence or improvidence. (9) For other good cause. (c) If, pursuant to paragraph (6) of subdivision (b), the court finds that the designation of the trustee was not consistent with the intent of the settlor or was the product of fraud or undue influence, the person being removed as trustee shall bear all costs of the proceeding, including reasonable attorney's fees. (d) If the court finds that the petition for removal of the trustee was filed in bad faith and that removal would be contrary to the settlor's intent, the court may order that the person or persons seeking the removal of the trustee bear all or any part of the costs of the proceeding, including reasonable attorney's fees. (e) If it appears to the court that trust property or the interests of a beneficiary may suffer loss or injury pending a decision on a petition for removal of a trustee and any appellate review, the court may, on its own motion or on petition of a cotrustee or beneficiary, compel the trustee whose removal is sought to surrender trust property to a cotrustee or to a receiver or temporary trustee. The court may also suspend the powers of the trustee to the extent the court deems necessary. (f) For purposes of this section, the term "related by blood or marriage" shall include persons within the seventh degree. 15643. There is a vacancy in the office of trustee in any of the following circumstances: (a) The person named as trustee rejects the trust. (b) The person named as trustee cannot be identified or does not exist. (c) The trustee resigns or is removed. (d) The trustee dies. (e) A conservator or guardian of the person or estate of an individual trustee is appointed. (f) The trustee is the subject of an order for relief in bankruptcy. (g) A trust company's charter is revoked or powers are suspended, if the revocation or suspension is to be in effect for a period of 30 days or more. (h) A receiver is appointed for a trust company if the appointment is not vacated within a period of 30 days.

Here the first step in removing a trustee is a petition filed with the probate court requesting removal. Only someone with an interest in the trust -- typically a beneficiary -- has the right to file such a petition. The probate court may ask for evidence or documentation in order to make its decision. When the probate court finds significant lack of capacity , it can remove the trustee and appoint a new and different successor trustee.

If she will not voluntarity agree here it is possibel to use the ocurts to force the issue.

I appreciate the chance to help you today.Please let me know if have more follow up.
Ask Your Own Estate Law Question
Estate Lawyer: RayAnswers, Attorney replied 2 years ago
Sample petition here for removal in Superior Court..
http://mauralarkins.com/files/Jennifer_Grant_s_Petition_To_Remove_Trustee_etc.pdf

You would have to modify this to your facts or use a lawyer to do so.Thanks again.
Ask Your Own Estate Law Question
Ask RayAnswers Your Own Question
RayAnswers
RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 43,505
43,505 Satisfied Customers
Experience: Texas lawyer for 30 years in Estate law

RayAnswers is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

My husband has been driving me insane with questions regarding estate issues since his mother died. I'm not a lawyer! Thanks to JustAnswer, I was able to calm his concerns.

Loretta TIllinois

Thanks Adam!! - A very direct and understandable response - you have been a great help!

Happy CustomerEllicott City, MD

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

< Previous | Next >

Meet the Experts:

Thomas McJD

Thomas McJD

Attorney

3,170 satisfied customers

Wills, Trusts, Probate & other Estate Matters

Barrister

Barrister

Attorney

5,414 satisfied customers

17 yrs estate law, real estate. Wills/Trusts/Probate

RayAnswers

RayAnswers

Attorney

43,505 satisfied customers

Texas lawyer for 30 years in Estate law

Infolawyer

Infolawyer

Attorney

5,015 satisfied customers

Licensed attorney helping individuals and businesses.

Ely

Ely

Counselor at Law

1,839 satisfied customers

Fully licensed attorney in Texas in private practice.

RobertJDFL

RobertJDFL

Attorney

1,451 satisfied customers

Experienced in multiple areas of the law.

ScottyMacEsq

ScottyMacEsq

Attorney

1,162 satisfied customers

Licensed Texas General Practice Attorney

< Previous | Next >

Related Estate Law Questions
Do all assets of a estate freeze once probate has begun?
Do all assets of a estate freeze once probate has begun?What happens when a creditor and debtor can not settle a debt in probate? Does a judge ultimately decide?… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,414 satisfied customers
Make question private...Is it legal to be a poa for close
Please make question private...Is it legal to be a poa for close relative when you live outside the usa in a different country? Also another relative who lives in usa but not in Pa. Where the elderley… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I am an heir in an estate that is being probated in the
I am an heir in an estate that is being probated in the state of Oregon under the laws of intestate. The personal representative is now saying she wants to close out the estate and make the distributi… read more
jb156200
jb156200
Associate Attorney
Doctoral Degree
416 satisfied customers
My mothers estate is in probate court, due for a final
hello pearl, my mothers estate is in probate court, due for a final motion to end, i believe my brother and sisters are trying to eliminate me from her assets. I have been homeless for about 2 years, … read more
Barrister
Barrister
Attorney
Doctoral Degree
5,414 satisfied customers
Have Irrevocable Durable POA and am the Trustee of my
Have Irrevocable Durable POA and am the Trustee of my Brothers Trust. He told me he changed beneficiaries on his life insurance but he didn't, we found out after my brother passed. Question is: Do I h… read more
jb156200
jb156200
Associate Attorney
Doctoral Degree
416 satisfied customers
For a probate estate in Pennsylvania in which (1) there is a
For a probate estate in Pennsylvania in which (1) there is a will and (2) the executor is the sole heir with authority to sell the property, does the executor need to petition the Court for approval t… read more
jb156200
jb156200
Associate Attorney
Doctoral Degree
416 satisfied customers
I was the POA now Executor of her estate my sister is asking
I was the POA now Executor of her estate my sister is asking me for a copy of her death certificate however my mom never authorized the policy by signing isn't hid fraud?? … read more
Barrister
Barrister
Attorney
Doctoral Degree
5,414 satisfied customers
I'm the POA for my mother, who's in an assisted living
I'm the POA for my mother, who's in an assisted living facility with dementia. I'd like to purchase a condo as an investment property using her funds, since her expenses are now higher than her income… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
I need an Oregon Estate/Probate to clarify if there is any
I need an Oregon Estate/Probate to clarify if there is any difference when it comes to compelling the Trustee to pay beneficiaries according to the instructions in the trust. I have already had the ve… read more
LegalGems
LegalGems
Juris Doctorate
10,196 satisfied customers
Dealing with initiating a probate case for my fathers estate
dealing with initiating a probate case for my fathers estate valued at less than 70,000 … read more
RayAnswers
RayAnswers
Attorney
43,505 satisfied customers
I need advice regarding probate / estate law in NYs, I said
Hi..... I need advice regarding probate / estate law in NYs … read more
Roy Hadavi
Roy Hadavi
Attorney
Juris Doctorate
896 satisfied customers
Second opinion] Family estate; not probated: Parents- Father
Second opinion] Family estate; not probated: Parents- Father & Mother is dead; oldest son dies after parents; all siblings has died; some siblings has children; oldest son wife dies after him, they ha… read more
Barrister
Barrister
Attorney
Doctoral Degree
5,414 satisfied customers
Family estate; not probated: Parents- Father & Mother is
Family estate; not probated: Parents- Father & Mother is dead; oldest son dies after parents; all siblings has died; some siblings has children; oldest son wife dies after him, they have no offsprings… read more
jb156200
jb156200
Associate Attorney
Doctoral Degree
416 satisfied customers
I have a question concerning wills and estate probate. I am
Good afternoon - I have a question concerning wills and estate probate. I am the oldest son with sister and brother. We all live in Florida but different cities and are not close (don't communicate). … read more
Ely
Ely
Counselor at Law
Juris Doctor
1,839 satisfied customers
Can the administrator of an estate in probate borrow against
Can the administrator of an estate in probate borrow against the equity of the house (part of the estate) to pay off creditors?… read more
Alex Esquire
Alex Esquire
Managing Attorney
Doctoral Degree
153 satisfied customers
I am my elderly's mom's POA and I need a probate attorney
I am my elderly's mom's POA and I need a probate attorney because my brother is living in my mother's house and damaging the home. I would like to sell the home at my mother's request but I need to le… read more
LawTalk
LawTalk
Attorney at Law
Juris Doctor
128 satisfied customers
I am a beneficiary of an estate that is being probated In
I am a beneficiary of an estate that is being probated In Oregon under laws for intestate. One of the assets the decedent owned and operated was a small business. The business was not compliant and fi… read more
RayAnswers
RayAnswers
Attorney
43,505 satisfied customers
PROBATE -REAL ESTATE CURE TO RESPOND TO... PROBATE -REAL
PROBATE -REAL ESTATE CURE TO RESPOND TO... PROBATE -REAL ESTATE CURE TO RESPOND TO ORDER TO SHOW CAUSE ISSUE: Show Cause Hearing Action Plan Needed given circumstances noted below.REQUESTS 1. Should I… read more
Irwin Law
Irwin Law
Juris Doctor JD
7,052 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x