Unsigned Family Trust

[JenCherie]

What is the name of your state? CA

Before my mother passed away she set up a family trust with her and I listed as first trustees. After she died, I found a copy of the trust (unsigned), but no original. I didn't take any action, as I believed there to be nothing in it. I have come to find out there is property in it I would like to sell. I called the lawyer who set up the trust, who told me at that time they didn't keep copies of the trust (this was at least 10 years ago), they had no records, and I would have to pay them at least $2500 to petition the court to say that the copy is as good as the original (she said if the copy was in a white notebook, which it was, the trust was definitely signed). I called another lawyer who told me all she has to do is write a letter for me; he has done it for clients of his. Unfortunately, he can't do it for me; I have to go to the original lawyer. At least one other lawyer has also refused to help me and told me to go back to the original attorney. I don't think she will agree to just writing me a letter.

At this point, I really don't know how to resolve this other than paying the original lawyer. Can I just dissolve the trust? I do have a POA (not registered, but notorized) for my mother. I would appreciate any and all suggestions. Thanks.

 

[colourfastt]

What is the name of your state? CA

Before my mother passed away she set up a family trust with her and I listed as first trustees. After she died, I found a copy of the trust (unsigned), but no original. I didn't take any action, as I believed there to be nothing in it. I have come to find out there is property in it I would like to sell. I called the lawyer who set up the trust, who told me at that time they didn't keep copies of the trust (this was at least 10 years ago), they had no records, and I would have to pay them at least $2500 to petition the court to say that the copy is as good as the original (she said if the copy was in a white notebook, which it was, the trust was definitely signed). I called another lawyer who told me all she has to do is write a letter for me; he has done it for clients of his. Unfortunately, he can't do it for me; I have to go to the original lawyer. At least one other lawyer has also refused to help me and told me to go back to the original attorney. I don't think she will agree to just writing me a letter.

At this point, I really don't know how to resolve this other than paying the original lawyer. Can I just dissolve the trust? I do have a POA (not registered, but notorized) for my mother. I would appreciate any and all suggestions. Thanks.

You will have to attempt to have the copy accepted by the court. As far as the POA, that became invalid the moment of death. POAs end at the death of the principal.

 

[Dandy Don]

Since you don't have the signed original, the trust is already worthless, except for showing intent.

What is the property and have you checked county courthouse records or title/deeds to see if it has been officially recorded in the name of the trust? Is there a will that is going to be probated? Whoever is executor can handle this during probate.

 

[seniorjudge]

If there is no signed trust, then all the stuff goes by the laws of intestacy.

http://www.finance.cch.com/pops/c50s10d190_CA.asp

California Intestate Succession Laws

If any part of a California decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse/domestic partner. In California, a surviving spouse or domestic partner is generally first in line to get any assets from the intestate estate, including any community property, quasi-community property, and separate property that belonged to the decedent.

The surviving spouse or domestic partner is entitled to the one-half of the community or quasi-community property that belonged to the decedent. In addition, the surviving spouse or is entitled to the following amounts of separate property in the estate:

* If there is no surviving issue (i.e., child), parent, sibling, or issue of a deceased sibling of decedent, the surviving spouse is entitled to the entire intestate estate.
* If the decedent leaves a surviving child, children of that child if the child predeceases the decedent, parents, or siblings, the surviving spouse gets one-half of the intestate separate property.
* If the decedent leaves more than one child or children of a predeceased child, the surviving spouse gets one-third of the separate property in the intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse or domestic partner as indicated above, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows:

1. Decedent's descendants (e.g., children and grandchildren), per stirpes.
2. Decedent's surviving parent or parents equally.
3. Issue of decedent's parent or parents, split equally if they are all of the same degree of kinship to the decedent (e.g., all decedent's siblings survive) or split per stirpes if unequal (e.g., some siblings survive and some are dead but survived by children).
4. Decedent's surviving grandparent or grandparents equally.
5. Issue of decedent's grandparents, per stirpes.
6. Issue of a predeceased spouse. To be eligible to real property, the former spouse cannot predecease the decedent by more than 15 years. For personal property, the former spouse cannot predecease the decedent by more than 5 years.
7. Decedent's next of kin in equal degree. If a claim is made through two or more different ancestral lines, those who claim through the ancestor nearest to the decedent are preferred over others.

3. State of California. If there is no taker under any of the above provisions, the intestate estate reverts (escheats) to the state of California.

California Intestate Succession Law Fun Facts

* Relatives of the half blood generally inherit the same share they would inherit if they were of the whole blood (except in certain cases involving the severing of the relationship between a child and the child's natural parent due to adoption).
* Relatives of the decedent conceived before his death, but born thereafter inherit, as if they had been born during the decedent's lifetime.
* Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession (which means that the person generally doesn't get a share of the decedent's estate). If it cannot be established by clear and convincing evidence that the person who would otherwise be an heir has survived the decedent by 120 hours, it is considered that the person failed to survive for the required period. However, these rules don't apply if the end result is that the state of California gets the intestate estate.
* Evildoers beware! Any person who intentionally and feloniously kills the decedent cannot inherit any of decedent's assets or otherwise benefit from the killing. The murderer is treated as if he or she had predeceased the murdered decedent, therefore being entitled to nothing (except some jail time). Felonious and intentional killing of the decedent can be established by a criminal conviction or a civil trial based on a preponderance of the evidence.
* On a similar note, a person who physically abuses, neglects, or commits fiduciary abuse of a decedent who was an elder or dependent adult is also prevented from profiting after the decedent's death. Instead of inheriting from the decedent, the abusive person is treated as having predeceased the decedent (thus becoming ineligible to inherit).
* California's intestate succession laws, as well as other laws dealing with wills and decedents' estates, can be found in the California Probate Code.

Copyright 2002 - 2006, CCH Incorporated, a Wolters Kluwer business. All Rights Reserved.

 

[tranquility]

For many reasons, the correct answer was colourfastt's:

You will have to attempt to have the copy accepted by the court. As far as the POA, that became invalid the moment of death. POAs end at the death of the principal.

The jurisdictional statement will be under Sec. 17200(a) of the California Probate Code. The same code at Sec. 15206(b) provides a trust is not invalid under the statute of frauds if there is a written instrument conveying the trust property signed by the settlor. (I assume you have the deed signed by the settlor titling the property there.)

The standard will be clear and convincing evidence. You will need to petition the court. Get an experienced attorney to do this. It's not guaranteed you will succeed in getting the trust in, but it's probable unless any other trust documents show up. $2,500 does not seem crazy if it covers the whole process. I know guys who would ask, and get, much more.