Legal Question in Wills and Trusts in California

You should have an attorney review the document just to be sure. Sometimes beneficiaries are not mentioned by name or there is a back up clause saying heirs at law. On the other hand, I once saw a living trust which failed to specify remainder beneficiaries at all. If that is indeed the case, you should petition the court for instructions under Probate Code Section 17200 (this will cost money, but not as much as a full probate.) If you are planning to divide the estate equally, and none of your siblngs are likely to give you a hard time, you might be able to skip it, but it is hard to be sure disputes won't arise- over your trustee fee, expenses, timing and sale price of home, timing of distributions, accounting, disposition of tangible personal property, et al. Unless you can be sure there won't be any issues with your siblings, your attorney will recommend that you petition the court to protect yourself from any second guessing they may do.

I agree, the first thing to do is have an attorney review the trust document for you. If there really is no beneficiary designation, but all of the "theoritical" beneficiaries, i.e. you and your siblings, are in agreement you can probably do things without going to Court. Again, this is something that you should discuss with an attorney.

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I am sorry for the loss of your mother.

If the Trust does not name any beneficiaries then, depending upon the value of the estate assets, a probate may be required in order to be able to transfer title of the house.

You really should gather ALL of the documentation that you can find. You should then have an attorney review the documentation. It is possible that some of the documents contain designations of the beneficiaries of the Trust. Another possibility is that there is a will that designates heirs and/or beneficiaries.

WIthout actually reviewing the documentation it is impossible to give you advice as to how to handle the matter.

For your information, attorney's fees for an estate are frequently payable out of the estate assets. For a probate, the attorney's fees are at fixed rates based on the size of the estate and payment must be approved by the Court. So, you do not have to be concerned about having to pay for attorney's fees out of pocket.

Also, you DO need to be careful about taking action without approval of either a court or ALL beneficiaries IN WRITING.

I would be happy to review your documentation and discuss the matter with you. The sooner you act the better in order to determine your options as well as rights and responsibilities.

Sincerely,

J. Caleb Donner

[email protected]

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I agree with Ms. Cusack's response. I disagree with Mr. Donner's response. Where a trust fails for lack of a beneficiary, a "resulting trust" in favor of the original trustor (settlor) and his or her successors in interest is presumed.