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Estate & Trust Blogs
You want more from the administrator of a trust or will
Summary
After a loved one’s death, some of the survivors are left with a financial shock. There is less money or property, sometimes none to a particular survivor, than that survivor would have imagined. Sadly, in this time of distress, only the same three remedies that exist to resolve any civil dispute are available: (1) negotiate; (2) sue/arbitrate; (3) do nothing, live with the status quo, and accept the consequences. As my other blog explains, if a victim negotiates or sues, they will than they deserve. This blog explains some of the basics of a Will or Trust Dispute. There are generally four bases for a survivor not receiving as much money or property as expected: (1) the decedent had less than it appeared; (2) the decedent did not intend the survivor to get what the survivor wanted or expected; (3) another survivor invalidates the documents disposing of the decedent’s property, in favor of the default state plan called intestacy; (4) another survivor alters or fabricates the documents disposing of the decedent’s property; (5) the administrator intentionally or negligently mishandles the property or funds.
Post-mortem, property, after paying debt, is distributed according to intestacy, a will or a trust; intestacy and will are overseen by Probate; trust is private, except dispute is via Probate
After a person’s death, called post-mortem, in general, the property of a person is called an Estate. An Estate is an entity that is intended to have a temporary lifespan. The purpose of an Estate is to collect a decedent’s property, ascertain and pay a decedent’s debts, and distribute a decedent’s assets after paying debts.
There are three methods for addressing an estate. Intestacy, will and trust. These methods are non-exclusive, and an estate can employ all three methods. The papers comprising a will, a trust or the combination are called testamentary documents, and the instructions on those documents, comprise what is called the testamentary plan.
Intestacy and will follow the same process, a judicial procedure called Probate. Intestacy is the process that distributes property according to a plan set by the state. A basic way to describe the intestacy plan is that a decedent’s assets are distributed to the closest relatives. For example, if a decedent had a spouse, with no children, all the assets go to the spouse. If a decedent had a spouse, with children, the half the assets go to the spouse and half the assets go to the children pro rata. These are generalities and ignore community property.
A will is like intestacy in that it requires the Probate Court to oversee the process. However, if a will is considered valid, the disposition of the property in the will is the plan that the Court will enforce.
A Trust is slightly different. A Trust is like a will in that it governs the process of how property is distributed after death, but, a trust is administered privately, with no oversight by a Court, unless the trust is challenged. In California, any challenge to a Trust must be in the Probate Court.
What if the Decedent simply had less than a survivor thought
There is very little legal remedy when the decedent had less that the survivor thought. A common circumstance is when the decedent had borrowed against a real property to get money to live or pay medical expenses. The survivor often thinks they will get a real property, but there simply may be no equity to get after repaying the debt. There are other common situations, including the decedent selling financial assets like stocks and bonds and using that money during life. There is very little legal remedy for this situation.
What if the Decedent did not leave instructions that are consistent with the survivor’s expectations
Sometimes a survivor expected to get more than the decedent’s testamentary plan provides for. This can happen when the survivor is a close relative, and there is a testamentary plan that varies from intestacy, or this can happen when the survivor is not a close relative but based on the relationship with the decedent expected the decedent would have a plan, but none exists, and intestacy prevails, or when the plan simply does not conform to the survivor’s expectations.
There are any number of circumstances that can result in the survivor receiving less. The strategies and tactics depend on whether there was a plan, whether than plan is legally valid, and whether the survivor is a close relative who would receive money in intestacy or not.
The general strategy is to figure out what your legal relationship to the decedent was, what rights you have based on that relationship, what plan is being carried out, and whether than plan can be successfully challenged.
Survivor is not a close relation, there is an undisputed plan, and the administration varies from the plan
The survivor needs to challenge the administrator, if a Trust is at issue, called the Trustee in Probate Court. Under this circumstance, the survivor does not challenge the testamentary documents, but needs to challenge the
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