Legal Question in Wills and Trusts in California

Re: Legality of unfiled trust

A trust does not need to be filed that is why people use it to avoid probate. This may be an A/B trust which means she is a part of it. You'll probably have to take her to court if she won't give you a copy or allow you to review it.

Re: Legality of unfiled trust

In order to address your questions precisely, more detail is needed regarding the terms of the living trust and the terms of your father's will. However, based on the information you have provided, it would appear that there are several serious issues that you should address without delay.

First, with respect to the living trust, there are several requirements for a living trust to be valid. However, these do not include "filing" of the trust.

Second, whoever is the trustee of the trust is the person you need to be dealing with to be sure that your rights as a beneficiary are not harmed. If your stepmother is the trustee and she is refusing to abide by the terms of the trust, she can be removed. There are numerous grounds for removing a trustee, some of which include a serious breach of trust, incapacity, unfitness for the position for other reasons, refusal to account to beneficiaries, a conflict of interest, and even extreme friction and hostility between the trustee and you, the beneficiary.

As a beneficiary, you have a right to enforce the trust provisions. A beneficiary cannot interfere with the exercise of the trustee's discretion unless the trustee abuses his/her power. What constitutes an abuse will depend the extent of discretion conferred upon the trustee. When a trustee acts dishonestly or in bad faith, a court will interfere. The trustee�s duty to keep and render accounts, and to furnish information to the beneficiary or his agent at the beneficiaries request, is one way of insuring that the trustee is meeting his/her obligations of care and loyalty.

As indicated above, your inquiry raises substantial issues. If you are the designated beneficiary of the estate, your stepmother and sister in law have no right whatsoever to freely use the estate and divide it up as they please. Given the general circumstances you have described, I would contact an attorney without delay so that your precise circumstances can be thoroughly assessed and legal action can be taken if necessary. Should you need legal assistance in California, please do not hesitate to contact me directly at the number indicated below.

NOTE: Please understand that the information provided in this reply is for informational purposes only and does not create an attorney-client relationship. It also may not be complete. Before you make any decision that might possibly have legal implications, you should consult with our office, or another qualified professional, in a manner that provides for thorough communication so that thorough legal advice can be provided in a manner that relates to your specific circumstances. Thank you. Law Offices of Robert F. Shaw, Jr. 336 Bon Air Center. No. 407, Greenbrae, CA 94904. (415) 209-6332. http://www.QualityLegalCounsel.com

Re: Legality of unfiled trust

The trust does not have to be filed anywhere to make it legal, nor is there a duty to file it with the court. However, if any part of it became irrevocable at your father's death, the trustee must give notice to all beneficiaries of the trust, and she must also prepare and send an accounting to them every year regarding the trusts assets and liabilities. In addition, the beneficiaries can request information regarding administration of the trust under California Probate Code section 16061.

Re: Legality of unfiled trust

A Trust does not get "filed"; it remains private

and its assets are not subject to probate, which

is the main reason people use it. 'although you

have provided limited facts, it appears that you

need to contact an attorney to handle this for you

A trustee has an initial duty to inform the

beneficiaries of the trust of its existence and

its terms. This is a statutory mandate with no

exceptions. Your stepmother cannot do whatever

she pleases, and this appears to be a ground for

her removal as trustee. There are many, many

issues here, and again, you will need legal

representation.

The foregoing is for informational purposes only

and no attorney-client relationship is created.

Re: Legality of unfiled trust

First of all, trusts in California do not need to be filed. As a named beneficiary, you are entitled to a copy of the trust. A lot will depend on if the trust has been properly funded, and who was named as successor trustee of the trust, as well as what might be in the will.

Failure to follow the instructions of the trust could create liability of the trustee to the beneficiaries named in the trust. You probably will need some professional help to work this out.