I am the successor in interest of my father's living trust and his will. My father is obviously now deceased and I want to file a law suit against a bank that foreclosed on one of his properties. Can I file this lawsuit as successor in interest to the property at sake?
A Trustee right to prosecute litigation requires counsel to look at three major elements.
First - The Trust itself should be examined. Does the trust provid explicit authority for the trustee to pursue litigation. How broad or expansive is the authority. If this is unclear the Trustee can petition the Probate Court for instructions.
Second - The California Probate Code has a number or provisions that relate to the power of Trustees to prosecute or defend actions for the protection of trust property. Your local counsel should look at these provisions.
Third - The nature of the action that the Trustee would like to prosecute should be looked at carefully. Litigation is expensive and attorneys fees can be assessed (depends upon contractual or statutory provisions) in the event of a loss. Consider the liquidity of the estate can be enormously impaired by litigation.
Seek the advice of local counsel conversant with trust and estate law.
This is a general answer only and you should seek the advice of counsel to address facts specific to your circumstances.
I agree with Mr. Hackard's answer. In addition to the factors he mentioned, I add one: any case your father may have had against the bank has been substantially reduced in value due to his death and made more expensive to prosecute.
In short, unless you or the trust estate has money to burn, the evidence of wrongful foreclosure clearly documented, and the provable economic damages substantial -- you're likely to find little attorney interest in the case.
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Only if your litigation is timely. I encourage you to speak with a probate attorney quickly to see if you have not timed out.
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If house is owned by the trust, as successor trustee, you have standing to sue. If the house is owned by decedent's estate, then the personal representative has standing to sue. You may need to open a probate to bring the suit if the cause of action is owned by decedent's estate.
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