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What is a constructive trust?

San Francisco, CA |

When is it used? Who can use it? What forms are needed? How to obtain them when residing in a different State? Thnx~ :)

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Attorney answers 4

Posted

A constructive trust has nothing to do with estate planning. A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner.

California Civil Code section 2223 provides that "[o]ne who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner."

Civil Code section 2224 states that "[o]ne who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it."

Under these statutes and the case law applying them, a constructive trust may only be imposed where the following three conditions are satisfied:

(1) the existence of a res (property or some interest in property);

(2) the right of a complaining party to that res; and

(3) some wrongful acquisition or detention of the res by another party who is not entitled to it.

(Burlesci v. Petersen, (1998) 68 Cal.App.4th 1062, 1069.)

Constructive trust is a remedy, not a cause of action. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 398.)

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

Asker

Posted

Wow, Thank you very much... Gift of the Residue of my Estate: Everything that is left of my Estate after all of the above gifts, & after death death taxes, the payment of my debts, & the exspence of my funeral & last illness & of the administration of my property & estate, costs, expenses of litigation, counsel, fees or other charges which the Executor may incurr shall be given to Mike Smith(our Dad, fake name..) of San Feancisco, Ca. free of all death taxes. If Mike Smith does not survive me, then his "HALF" of this gift shall be divided equally among his then living children, free of death taxes. General Disinheritance; Except as otherwise provided in this will, I have intentionally omitted to provide for any of my heirs, or persons claiming to be my heirs, living at the date of my deathwhether known to me or not. I have a high regard for my half brother Mike Smith. Desiring that a significant part of my estate pass to some of the the people who are significant part of my estate pass to some of the people who are broadly , members of my family & recognizing that Mike Smith is elderly, & may not survive me, I have IN THIS WILL made a gift of a large part of my estate to the then living children of Mike Smith if Mike Smith does not survive me...............My Sister & I never even got a notice of her death of probate hearings. We live in Wa. state & our Aunt lived in Northern California. Our Aunt specifically diswilled 1 of her other half brothers & anyone in their family also her sister too & any of her descendants....YET ALL OF THEM ENDED UP INHERITING SOMETHING...My Sister & I are the ONLY ones thsat did not inherit anything! We weren't even notified-. Where it says my Aunt gave the Residuary to our Dad & if he didnt survive her his HALF then would pass to us...The other half was to of gone to us, that is the way she made it in her Will as it looks to a many a people, yet charietys got our part?! Now whats wrong with this picture?! Please help ..:l TY

Asker

Posted

Those disinherited family members were specifically named to be didinherited too...

Asker

Posted

disinherited, oops...my bad

Asker

Posted

We are the then living children of Mike Smith, also named as her nieces as well in her Will....

Asker

Posted

I mean the family that got specifically disinherited she put stuff like....I LEAVE HIM NOTHING! OR ANY OF THEIR DESCENDANTS ETC... We are the ones she wanted it to go to... My Dad's former ex stepson whom is also an Attorney here in WASH STATE. not only took our Aunts estate but our Dads as well. We have our Aunt on tape vcr in panic that my Dads exwife & here sons would end up with it & THEY DID.-Abunch of unclaimed property since thats how we found out about everything by just checking some of our familys names & our Aunts was 1 of those names & she popped up over 25 times with unclaimed like dividends, stocks, securites, etc... TOTALLING OVER $75,000.00... Shouldnt that be enough to reopen the probate?

Asker

Posted

Her estate over $5,000,000.00+

Posted

I agree with the previous answer and will just add that a constructive trust is the law's remedy for the loss of property as a result of fraud or self-dealing. It is imposed by a court in order to prevent the unjust enrichment of one party at expense of another. It typically results from the breach of a fiduciary relationship, where the fiduciary fraudulently induces the other party to transfer the property to the fiduciary.

This answer is in response to a general legal question and is intended for informational purposes only. It does not constitute legal advice. Use of this website and its e-mail link does not create an attorney-client relationship with Attorney Mekdsy. Messages with confidential information should not be sent to Attorney Mekdsy via the e-mail link. The information provided in this answer must not be used as a substitute for consulting with an attorney. Brian Mekdsy is licensed to practice law in the Commonwealth of Massachusetts only.

Asker

Posted

ok then, this is EXACTLY what I need here then...My Sister & I were never given a notice of our Aunts probate... So who would I go after then since there was an Executor & also an Administrator BOTH handling my Aunts estate...?

Asker

Posted

If you look above at the attorney & go to his comments I show what part of my Aunts will said...will you read it please... :)

Brian Mitchell Mekdsy

Brian Mitchell Mekdsy

Posted

I think you should contact a California probate litigation attorney as soon as possible.

Posted

A constructive trust is a legal remedy. It is not a kind trust that is created by a settlor. The court imposes a constructive trust on the assets of a liable person who is in possession of trust assets that have been wrongfully taken, such as financial elder abuse or undue influence.

Posted

That's a trust you make with Legos.

This is not legal advice. I am not your lawyer. You are not my client. You cannot rely on my response to your question. My response to your question is probably worth exactly what you paid for it. You don't get to sue me for anything. If you'd like to sue me, well you have to hire me first. Here's how you can hire me! #1 Call: 1-888-463-2843 #2 Email: david@davidcarrierlaw.com #3 See me on TV! www.woodtv.com - go to the Ask the Expert tab! #4 Listen to my radio show (2 full hours every week!) www.woodradio.com - go to the podcast section.

Asker

Posted

Or Lincoln logs..lol...:)

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