In a case where a family member has just passed away, what can an individual do in order to retrieve the trust documents?In this case, if the interested individual does not have the trust instrument that would help prove the trust conditions, the trust would be declared invalid and the trust property would return to the estate of the individual who has passed. This is legally referred to as a resulting trust. The interested individual would then need to apply to the probate court to get appointed as the administrator of the estate and successor trustee. Once this is done, they can get an inventory of the property along with any other assets that lie in the trust and follow the laws of intestate succession to divide the property among the heirs.
When filing for Bankruptcy if an individual has not listed his real estate assets, can he now claim that the property belongs to him because of a resulting trust? How does judicial estoppel be used as a defense here?If the individual says that the property belongs to him because of a resulting trust and if the individual filed bankruptcy and did not list the assets as his property, a judicial estoppel could be used as a viable defense. A judicial estoppel is based on the following factors:
1. The plaintiff’s first position is inconsistent with his later position;
2. The plaintiff was able to persuade the court to accept the plaintiff’s previous position. This could seem like the plaintiff misled the court; and finally,
3. The plaintiff’s maintaining of an inconsistent position would give them an unfair advantage or force an unfair loss on the other party if they were not estopped.
The first two factors are satisfied in this case since the individual did not mention the assets when he was filing bankruptcy and later chose to claim them. As for factor three, the person from whom the individual is demanding his assets back can say that the assets have been maintained by them for many years now, they have paid taxes on them and denying ownership now would put them at a risk of criminal liability for fraud. Thus, in this case, the individual can be judicially estopped.
My lawyer appears to have made a mistake by not stating a beneficiary on a trust agreement. Has the law always stated a beneficiary must be included? If not, when was the law changed to include the naming of a beneficiary?A trust agreement by definition must always have a beneficiary. When a beneficiary is not listed on a trust agreement the common rule is that a resulting trust is created in favor of the deceased’s estate if the trust is testamentary. If the trust is not testamentary then the trustee holds ownership of the trust. In cases where the attorney has made a mistake by not naming a beneficiary, the individual will have the right to sue for malpractice. However, the trust that is written cannot change and will still be in effect.
When constructing a resulting trust, there are many questions that can arise. These could include queries that involve understanding the requirements of a resulting trust, the process of setting up a trust and so on. Put your questions to the Experts now for quick and insightful answers that can help you with your case.