Legal Question in Wills and Trusts in California
Mandatory vs Discretionary Trust Language
In a joint revocable trust agreement between husband and wife can the discretionary instructions ''may'' override the mandatory instructions ''shall''. Surviving settlor did not follow any of the mandatory instructions in the trust claiming that the discretionary provisions allow him to do what he wants at his discretion including not dividing the assets into sub-trusts following her death as well as changing the mandatory successor trustees and changing the beneficial disposition of her assets. He did not file her will or submit a spousal property petition just retained all of her assets.
Is this legal?
2 Answers from Attorneys
Re: Mandatory vs Discretionary Trust Language
this question cannot be answered fully and completely without reviewing the trust agreement and facts relating to title of property. a petition should be filed by any beneficiary with significant distributions at stake with the superior court as soon as possible (before assets have been dissipated or hidden).
Re: Mandatory vs Discretionary Trust Language
without reading the docs, and i would assume you are a beneficiary of a subtrust which has not been put into effect or funded, i would say no, no, no. once some one dies the trustee must divide the trust but his share is revocable and modifiable as long as it does not effect the first person's requirments that became irrovcable upon his/her death. i have been doing this for over 30 yeaars in the bay area and you may need to petiton the superior court in the county in which they lived to bring the current trustee to their senses --- good luck
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