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Gerald, Esq
Gerald, Esq, Lawyer
Category: Estate Law
Satisfied Customers: 4187
Experience:  30 years of experience
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I am the trustee of a living trust worth close to two

Customer Question

I am the trustee of a living trust worth close to two million. My father has been dead for the last 6 years, and my only sibling is the only other beneficiary besides me. She is very angry that I was left as sole executor, but my father trusted me more, as she has been involved in mob activity in the past. For the last 6 years, at least once a year she has continued to legally threaten me with lawsuits, and finally this year she served papers on me to try and have me removed and have her replace me. There is a clause in the trust that states that anyone named in the trust that continues to contest the trust, will be automatically written out. So far, my attorney...who is a leading trust attorney in the area...has been playing Mr. Nice Guy, and I am getting nowhere! I have jumped through every hoop, and done everything she has requested, but now I am fed up. I am almost ready to start looking for another very aggressisve attorney that will put the fear of God in her. Any advice?!
Thanks.
Submitted: 1 year ago.
Category: Estate Law
Expert:  Gerald, Esq replied 1 year ago.
Hello: Thank you for using Just Answer. Please bear with me while I verify something for you. I will respond fully shortly. Thank you for your patience. Kind regards,Gerald
Expert:  Gerald, Esq replied 1 year ago.
Hello: Thank you for your patience. I believe that there are really two parts to your question. 1) Is the No-Contest Clause valid and 2) Which is the better tactic or strategy in dealing with your sister. 1) In regard to the No-Contest Clause, I am afraid that such clauses are not necessarily valid under California Law. A “no-contest” clause in a Trust or Will tries to penalizes a beneficiary who challenges the instrument or the administration of the Trust or Will. In 2008 California enacted legislation that makes most no-contest clauses unenforceable. Also in 2013 The California Supreme Court held that most such clauses are invalid. See: http://law.justia.com/cases/california/supreme-court/2013/s202210.html So your first challenge is that relying on the No-Contest provision is probably not supportable, and will place you into a weakened position. This does not mean that you can not try to push back against your sister. If you can persuade the Court that your sister's claims are frivolous you may be able to get relief from her actions. 2) The additional challenge that you face however in pushing back against your sister is that if she does not back down you could be faced with significant mounting legal fees that will drain the Trust. It is a very unfortunate fact that many families waste entire fortunes by fighting over the administration of a Trust or Will. If you have two unreasonable people, and two unscrupulous attorneys egging on their clients you can find that a two million dollar Trust or Estate is drained in a relatively short few years. So it may very well be that your attorney has been providing you a good service by trying to minimize the conflict over the Trust. This does not mean that you should just role over. Given your description of your sibling if she were to become administrator you may find that the Trust is gone in short order as well. You may wish to discuss with your attorney whether it would be better to see about terminating the Trust and just divide the assets equally. It would end a great deal of the headaches that you are facing. See: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=15001-16000&file=15400-15414 I understand that this information is not what you may have been hoping to hear. However, I would not want to mislead you into pursuing an action that may cause you greater harm. I would not dissuade from seeking a second opinion from another attorney. But please be wary of an attorney who promises that they will get your sister off your back through litigation. I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question. I hope the information I provide is useful to you. I want you to be comfortable and satisfied with my attempt to assist you. Please, if you have ANY follow up questions, feel free to ask. Please note that I am generally unavailable Friday evening through Sunday. Please do not forget to give me a positive rating. It adds nothing to your costs but it helps me greatly. Thank you.If you are dissatisfied with my response PLEASE let me know before giving me a negative review so that I may try to be of better assistance. Or if you prefer, let me know and I can “Opt Out” and your question can be re-posted without additional cost to you. I will be fair to you and only ask the same from you.Good luck. Please note: Information is educational and not given as legal advice. Only your local attorney can give legal advice. I can't establish or accept an attorney-client relationship with you. All posts are available for public viewing. Kind regards,Gerald