My inheritance

Asked about 4 years ago - Rancho Cucamonga, CA

how can i get my inheritance from my grandmothers estate when she specified not until im 25, but i need to pay living cost for myself and my children.

Attorney answers (4)

  1. David Allen Hiersekorn

    Contributor Level 12

    1

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    Answered . I want to be sure to clarify my answer in light of the other two responses. First, New York law is nothing like California's and I'm not sure what a New York attorney is doing answering here. We don't have a "Surrogates Court" in California, and the standards for trust governance and modification are very different from those in New York.

    Mr. Baer's response is closer, but still not entirely correct. The trustee may have discretion to make distributions. Or, the trustee may be bound to make distributions for "health, education, maintenance or support." Those standards are mutually exclusive. Contrary to Mr. Baer's suggestion, they aren't one in the same. Discretion means that the trustee can do whatever he wants, whereas the other standard is mandatory - i.e. he would have to make distributions. And, while a trust drafter may state that distributions are to be made for "comfort and happiness," that language is nonstandard and fraught with trouble.

    Still, I was not suggesting that the trustee ignore the terms of the trust. Rather, I was stating - correctly - that the terms of a trust may be modified under Probate Code Section 15403 with the consent of the beneficiaries. The reason that I suggested that the trustee should be the one to contact an attorney, if willing, was that the modification process would be a proper trust expense and the funds inside the trust might be used to pay for the modification. The only reason a mother struggling to support herself and her kids should pay an attorney out of her own funds would be if the trustee was entirely unwilling to help and she needed to bring a court action to compel an early distribution of the trust assets.

  2. David Allen Hiersekorn

    Contributor Level 12

    Answered . In order to give you a complete answer, I'd need more information. Does the current trustee care if you get the money sooner? Are there other beneficiaries of the trust? How great is your need?

    In general, if all of the beneficiaries agree and the trustee is willing, the terms of a trust can be modified without court intervention. You might be able to do this in an afternoon in an attorney's conference room.

    If there are beneficiaries who would be negatively affected or who won't consent, then you might need to go to court.

    So, really, the first question is whether the trustee wants to be able to help you or not. If he does, then the least expensive way to do this is to have him contact an attorney. If he does not want to help, then it's a little more complicated. And - obviously - if the trustee does not want to help, then you should be the one to contact the attorney.

  3. Mark Brian Baer

    Contributor Level 14

    Answered . I just want to point out that when it has been referenced that the Trustee can help you out with your expenses if he/she wishes, it is based on the terms of the trust. The trust may state that the trustee has discretion to make distributions to you until you reach the age of 25. Those distributions will be based on one of the following two standards: (1) your health, education and welfare; or (2) your comfort and happiness.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

  4. Theodore W. Robinson

    Contributor Level 20

    Answered . Ordinarily, you can go to the Executor and/or trustee and ask them to make an application to the Surrogates Court or Probate Court to release the money for exactly those purposes. Usually the Judge will allow it if it is legitimate.

    Good luck.

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