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Is an estate (home) which is taken out of a revocable living trust still governed by the trust?

San Francisco, CA |

1. My Grandmother created a revocable living trust and later passed away. I was NOT included in this revocable living trust, however my father was the successor trustee and did not agree with the terms of the trust.

2. My father (successor trustee) sold the house out of the trust and into his name (grant deed). The house is currently in his name. He died WITHOUT a will or trust. The house is still in his name.

Do I have a valid claim to a fair % of this home?

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Attorney answers 3

Posted

Was your father a beneficiary of your grandmother's trust? Was he allowed to receive the house outright or was it left in Trust for your father's benefit? This makes a big difference. If you father was either an outright beneficiary of the house or if he had a right to distribute the house to himself, then you would have a right to some portion of the home as an heir-at-law of your father. If your father was required to keep the home in the Trust, then the beneficiaries of the Trust would have a right to obtain the house by claiming that your father breaches the Trust terms by transferring the house out to himself. However, they would have to make that claim against your father's estate and they would only have one year in which to do so.

In the end, it depends on what the trust says and what the successor beneficiaries of the Trust do to try to obtain the house. You definitely should sit down with a lawyer to review the documents on this one.

Posted

Whether or not a Trustee 'agrees with' them, the dispositive provisions of the Trust are what he or she has a fiduciary duty to follow, like it or not. It's hard to fully answer your question without looking at the actual documents. Sit down with an Estate Planning attorney. See Avvo.com under Find-A-Lawyer. Take what documents you have and discuss the best path going forward. Good Luck.

Asker

Posted

The fact is though, that it's no longer in the trust, it's now under my fathers name and owned solely by my father (grant deed). So the question is, does a trust govern a piece of property removed from the trust?

David Thomson Egli

David Thomson Egli

Posted

If your question is whether you have an interest in the property because it is in your father's name, the question is whether the property properly removed from the trust under the terms of the trust and your father's fiduciary duties as trustee of the trust? If yes, then the trust doesn't govern the property and it would be part of your father's estate. If no, then a court could require the property be transferred back to the trust, in which case its distribution would be governed by the trust. However, if an action to recover the property isn't brought with within the one-year statute of limitations as attorney Davidson set forth in his answer, the right to recover the property and have it distributed according to the trust terms would be lost. The property, then, will be distributed as part of your father's estate. As a surviving child of your father, you would be one of heirs at law, but your exact share can't be determined without knowing if he had a surviving spouse and other surviving children or issue of a deceased child.

Posted

It really wasn't up to your father to decide whether he "agrees with the terms of the trust." One of the original purposes of the trust was to dispose of the property according to your grandmother's wishes. Your claim to the property probably depends on the terms of your grandmother's trust. If it provided that your father was to inherit the house at her death, then the transfer from the trust to your father may be valid. In that case, if your father subsequently died without a will or trust, you may stand to inherit the property (or a portion of it if your father was married or had other children). Regardless, you should attempt to locate the applicable documents and make an appointment to meet with an estate planning attorney to review them. It is likely the terms of your grandmother's trust will hold the answers to this question, thought you may be unable to obtain a copy.

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