Legal Question in Wills and Trusts in Georgia

my dad p[assed away in 2009, he had a trust and my step mom has not is not offered to spilt the trust or even talk about it. what can i do to have her exicute the trust

Asked on 9/28/11, 4:30 pm

1 Answer from Attorneys

Your stepmother does not "execute" your father's trust if you mean create or sign it. By executing, I assume you mean carry out the duties in the trust. Firsts, your stepmother has no duty to do anything unless she is named as the trustee of the trust. Further, she has no obligation to split the trust unless the trust requires her to do so.

I don't where your father lived at the time of his death. Each state has a trust code and Georgia is no different. Under the trust code as well as the trust itself, the beneficiaries can demand at least a yearly accounting over what funds or property is in the trust and how disbursements are made.

But before we get to that point, did your father have a testamentary trust (one in his will) or a revocable living trust that he created in his lifetime? And how do you know that he had a trust? If the former, then his will ought to have been submitted for probate. If the will has not been submitted, you can compel your step-mother to produce the will if she has it.

If the latter, trusts are not filed with the court - its one of the reasons why people have trusts -so that they will stay private. The only people who are entitled to see the trust and who can find out what is in the trust are the trust beneficiaries. Do you know any of the beneficiaries of the alleged trust or would this just be you? If so, do they have a copy of the trust that they can show you? It may be that you are not a named beneficiary. If that is the case, then you are not entitled to anything. While trusts can be challenged, it is very very difficult and there would be very limited grounds. Trusts are expensive to set up and it would be very unlikely that one would be set up if your father was not mentally competent.

You need to see a copy of the instrument that created the trust and you need to see who is named as a trustee by that instrument. It may be your stepmother or it may be a bank or a lawyer or some other person. As I said, only beneficiaries are entitled to demand accountings from the trustee and you will have to see what the trust says about that and whether you are a beneficiary and, if so, when distribution can be expected.

You can always write to the trustee and demand to know if you are a beneficary and ask for a copy of the trust if you are. Failing that, you might want to see if your father had a personal attorney and see if the attorney can provide any information.

If you already have a copy of the trust and if it required distribution to be made to you and it has not been made, then you need to take the trust to a probate/estate/trust attorney in the county/state where the trust is located. Pay the attorney to review the trust and advise you of your options. The attorney can write your stepmother a letter and ask her to fulfill her duties as trustee or you will file a petition to remove her and a successor trustee will be appointed.

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Answered on 9/28/11, 4:48 pm

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