Skip to main content

CIVIL LITIGATION

Van Nuys, CA |

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?

Attorney Answers 4


  1. 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.


  2. 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.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference


  3. Only if your litigation is timely. I encourage you to speak with a probate attorney quickly to see if you have not timed out.

    NOTE: The use of the Internet for communications with the firm or this attorney will not establish an attorney-client relationship and messages containing confidential or time-sensitive information should not be sent.


  4. 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.

    These "answers" do not constitute specific legal advice tailored to your particular situation. Further, you are NOT a client of mine unless I agree to represent you in writing, evidenced by a fully executed written retainer agreement and a payment of a retainer amount. You should not act upon or rely upon any any statements contained in this "answer" without retaining an attorney to represent you and to advise you regarding your particular legal situation.

Wills and estates topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics