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I have a probate question. California. There is a trust

Customer Question
I have a probate...

I have a probate question

Lawyer's Assistant: Estate laws vary by state. What state are you in?

California

Lawyer's Assistant: What documents or supporting evidence do you have?

There is a trust belonging to my late husband. No will. There are 2 adult children from our marriage. We were separated, but married when he passed away in August.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

There was a quit claim I signed regarding the trust property a few years ago. now i am told this was the wrong form anyway. it would have needed to be a waiver. So by law as legal wife i am still entitled to be a beneficiary. I want confirmation if this is a fact.

Submitted: 1 month ago.Category: Legal
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Answered in 5 minutes by:
3/22/2018
Lawyer: Ray, Lawyer replied 1 month ago
Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 46,376
Experience: 30 years in civil, probate, real estate, elder law
Verified

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

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Lawyer: Ray, Lawyer replied 1 month ago

Are you named in the trust as beneficiary?

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Customer reply replied 1 month ago
the trust was set up by his deceased mother years ago. The beneficiaries included his brother and sister too.
Lawyer: Ray, Lawyer replied 1 month ago

You would need lawyer here to file trust contest.You can argue for a community share if community proeprty was part of the trust assets.Also there may have been undue influence or lack of capacity.You are going to need lawyer here to fight for your rights and a fair share under CA law.

Lawyer for you here

Contact the State Bar for Help

I am so sorry for your loss here.I appreciate the chance to help and wish you the best.

If you can positive rate 5 stars it is much appreciated.

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Lawyer: Ray, Lawyer replied 1 month ago

The petition must state the reasons the trust should be set aside. For example, if you believe the trust was created at a time the settlor was mentally incompetent then the petition has to state that as a fact. If you don’t know for a fact the settlor was incompetent then you can make the claim on “information and belief.”

Certain allegations, such as fraud, must be plead with specificity. This means your petition has to state the underlying facts supporting your fraud claim. You must state enough facts to show there is some proof of each element of the fraud claim.

Whatever the reason for challenging the trust you must file your petition in a timely way. If the trustee has sent you the statutorily required notice then you only have 120 days from the time you receive the notice to file your case. If the trustee has failed to provide you with this notice then you may have up to four years to file your lawsuit.

Once your trust contest has been filed you will have to serve your petition on the trustee, the trust beneficiaries, and anyone else whose interest in the trust may be affected by your lawsuit. Some people can be served by mail and some will require personal service.

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Customer reply replied 1 month ago
No I was not named. Is it not true that the remaining children and spouse are atomatically the beneficiaries equally under the law. It was his trust from his mother. There was no will or adjustment to the original trust
Customer reply replied 1 month ago
My children shockingly do not want me to be a 1/3 beneficiary.
Customer reply replied 1 month ago
They are trying to disqualify me.
Lawyer: Ray, Lawyer replied 1 month ago

Trusts are different than wills or intestate probate.You will need lawyer to sue the trust to get court awarded shares.

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Lawyer: Ray, Lawyer replied 1 month ago

If you can sue the trust here court may award you your intestate share

https://www.ca-trusts.com/intestate.html

Thanks and thanks for rating 5 stars.

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Customer reply replied 1 month ago
Why is the burden on me? The law says the property named in the trust should be divided equally to the children and spouse in the absence of a will. Is that correct? The trust was set up by his mother, not him. Also, the intestate share,which is assets held outside his trust, is to be divided by 3 according to law as I am still the legal wife. Isn't that the operative word. Legal wife.
Lawyer: Ray, Lawyer replied 1 month ago

You would have interests in both.You may have to sue to get them.The lawyer can assert your spousal claim to your shares.You do have rights as beneficiary/heir.

Thanks for the followup.

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Customer reply replied 1 month ago
What about the quit claim i signed a few years ago when my husband was alive (for the property in the trust). This is most important. I was told it is not valid. It is the wrong form to get me off as inheriting this portion. The only thing that can release one from being a beneficiary of a trust is to sign a Waiver. Is that true. This is most important. I want to be sure in order to go forward. No one wants to sue their children essentially.
Lawyer: Ray, Lawyer replied 1 month ago

It probably is invalid based on what you were told.Thats correct it has to be a waiver and this was not done correctly.

Thanks for follow up and for rating 5 stars.God luck with all.

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Customer reply replied 1 month ago
Thanks. Are you certain of this? Do you have any references explaining this that you can refer me to please?
Lawyer: Ray, Lawyer replied 1 month ago

They are called disclaimers, here is reference

http://www.californiaprobate.info/2011/09/disclaimers-in-california-probates/

Thanks for the follow up and for rating 5 stars.

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