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Can an appointed Trustee and Beneficiary liquidate assets unilaterally w/o agreement with other beneficiary & division of funds?

El Cajon, CA |

One of two brothers was appointed Trustee of parents deceased Living but continuing Trust. Can the Trustee then liquidate assets, without division, when one of the conditions of the wills was that assets should be divided by agreement between the beneficiaries and, in the case of disagreement, the Executor would decide? The second brother was not notified for agreement.

Attorney Answers 3

Posted

Mr. Daymude has given a thoughtful answer. A trustee generally has the power to sell assets and divide the proceeds among the beneficiaries unless the trust instrument provides for a distribution of specific assets to the beneficiaries. The other brother should have received notice under Probate Code Sectino 16061.7 that he has 120 days to contest the trust. If he did not receive that, it gives him a certain advantage. In any event, the correct thing is for the non-trustee brother to immediately retain counsel. Tell him to call us now. Best regards.

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Posted

You are using legal terms wrongfully and without understanding them. The second brother needs legal advice from an experienced attorney who has reviewed the testamentary documents and the facts. Nothing short of that will do.

Generally most trust provisions give the trustee broad discretion and, unless the trust was contained in a will and the wills provisions control the trust, a will would have no bearing on the rights of a trustee. In that circumstance, the will would have to be first admitted to probate and an executor appointed by the court for the executor or trustee to have any authority to do anything. However, a named successor trustee named in a declaration of trust not contained in a will may have the authority to do exactly what has been done. Good luck.

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This is something that can't be adequately answered on AVVO. You need to talk with a probate or wills & trust attorney who can review everything.

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