Legal Question in Wills and Trusts in California

can the trustee distribute assets to the heirs of a deceased beneficiary of the trust instead of the estate of that beneficiary to avoid a probate where the trust is silent on that issue

Asked on 4/08/13, 3:25 pm

2 Answers from Attorneys

Aaron Feldman Feldman Law Group

The trustee MUST follow the instructions of the Trust Instrument. The Trustee will distribute those assets held by the trust to the beneficiaries and in the manner specified in the Trust. If there are assets that are not in the Trust, then those assets would be distributed either in accordance with a valid will or if the will does not specify or is otherwise invalid, then to the heirs at law.

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Answered on 4/08/13, 4:45 pm

Charles Perry Law Offices of Charles R. Perry

If the trust is silent on the issue as to who should receive the assets, then normally California's antilapse statute applies. See California Probate Code Sections 21101, 21110, 21111. One of the possibilities under those statutes is that there is a distribution to the heirs pursuant to Probate Code 240. There are not enough facts here to know exactly what should happen in this case.

If the trustee has any doubt as to the distribution, then the trustee should petition the court for instructions. If a person believes he is entitled to a distribution from the trust, and the trustee does not agree, then that person should petition the court to challenge the distribution.

Filing any of either petition should be done with an attorney's assistance.

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Answered on 4/09/13, 1:14 am

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