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Can a successor trustee transfer assets to the decedent's living trust after his/her death?

San Diego, CA |

My grandparents had an AB Trust, and both were supposed to split assets equally between all their children and grandchildren. After the death of my grandmother, my grandfather created a separate living trust naming only his children as successor trustees. He did not transfer several pieces of real estate into his trust. A successor trustee subsequently transferred this real estate into his trust (decades after his death), and then into her own name (since she was successor trustee.) Is it legal to do this? Thank you!

Attorney Answers 3


  1. I think you may mean she was "beneficiary" (she may have also been successor trustee)?

    Whether or not these transfers are proper depends on how the assets were titled. You say GF did not have assets in his trust - but did he have a "pour over will" transferring assets to his trust or the other trust? The pieces have to be reviewed and looked at to determine if things were done correctly. Assuming both grandparents had the intent to fund the initial trust but failed to do so it will be hard to say if that was intentional, accidental, etc. So you need more facts. I would suggest having an experienced probate attorney review things.

    This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/


  2. You should consult with a trust attorney. There are a number of different facts as well as relevant documents that should be reviewed and discussed. In general, when spouses create AB Trusts, the surviving spouse's resulting trust (here your grandfather) is typically revocable, meaning your grandfather can make changes to his trust and do with his portion of their assets as he pleases. It also sounds like your grandfather did not "fund" the trust since he did not actually transfer assets into it. It is possible that action was subsequently taken to correct the failure to fund. If that is true, title to the property would be in the name of the trustee as trustee of the trust (e.g. Jane Smith, trustee of X Trust). Again, you should consult with a trust attorney.

    The above answer is a general response posted in a public forum. The above answer is not to be considered legal advice and should not be relied upon as such. The above answer does not create an attorney client relationship. You should consult an attorney for specific legal advice as to your individual situation.


  3. Estate planning for blended families can be tricky. The thought that the survivor would favor his or her own is often overlooked. Whether what happened is proper or not depends upon the documents. Step one is to take the documents to a qualified estate planning attorney to review. Nothing can be known with certainty until the original and the second round paperwork is reviewed.

    Many Husband and Wife Estate plans done during the past 15yrs without considering blended family issues were done so that on the first death one half the property went into a trust for the benefit of the survivor and if anything was left after their passing that half would be divided between both husband and wife's kids. The surviving spouse's half would during their lifetime be under their sole control and be redirectable to go to to just the survivor's kids. In an article I recently wrote I referred to this as a three quarter's plan in that the survivor's kids end up with three quarters of the estate.

    DISCLAIMER: Nothing in this post or transmitted by email should be interpreted as legal advice unless I have been retained and you have made a deposit towards my fees. This post is intended to help the person posting the question to ask the right questions with the attorney of their choice. Your time to act may be very limited and this could substantially reduce your rights and options. Do NOT rely on anything I have written here -- You should contact a lawyer in your area immediately after reading my posting. I am licensed to practice law only in the State California. For questions connected with the laws of other states you should seek an Attorney in that state to advise you. The following disclosure is required pursuant to IRS Circular 230: unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein. Attorney Weissler is licensed in California only. Although the legal rules in many states are the same, rules in your state may differ from those known by the responding attorney. Before relying on information received over the internet always check with a local attorney..

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