Legal Question in Real Estate Law in California

Re: Assets not held in the Trust

If the account was not opened in the name of the trust, yes it is true. This is so typical when people use lawyers to draft estate planning documents and don't themselves know what they are doing and why.

I recommend you get my a free download of my Special Report, The 7 Most Common Mistakes Made by the Middle Class in Planning For the Inevitability of Death and the Likelihood of Disability, and How to Avoid Them." You can get it at my site, www.IWant2CreateMyLegacy.com. You should probably also get my book, Create Your Legacy & Save the American Middle Class. It contains the information that I developed for lay audiences in hundreds of seminars to thousands of people. It will answer nearly all of your questions about how to protect a family from the financial catastrophe that can often accompany the inevitabilty of death and the likelihood of disability. And answer a lot of important questions you never thought to ask. Both are terribly important. A lot of people don't realize that conservatorship is the fastest growing lawsuit in America and the average conservatorship lasts 3 years today. That is because medicine has gotten better and better at keeping us "alive" ofen under the worst circumstances.

The book contains a copy of the "LEGACY LIVING TRUST PACKAGE". It is, as far as I know, the only complete living trust planning package written in what I call "people ease" rather than legalese. Anyone reading at a 10th grade level should be able complete the package themselves with the information in the book. It is designed to be valid in all 50 states and even contains forms for making amendments when the desire to do so appears.

The book is $29.95, the best investment you'll ever make. About the cost of a six minute consultation with me personally. One can download the trust package for $79.95. For more info or to buy the book, go to www.IWant2CreateMyLegacy.com.

You may want to log in on my blog on that website or on www.MWRoth.com, and create an RSS Feed on your E-mial system since I will be beginning shortly a 3 month regular post on the topic of asset protection for the middle class.

Re: Assets not held in the Trust

After a brief search of the Probate Code and cases on WestLaw, I did not find anything specifically on point, but probate is relatively unfamiliar territory for many real estate lawyers, including myself. In reasoning from trust law principles, however, it seems to me that your mother's refinancing and deposit of the proceeds into an account in her own name evidences an intention to withdraw those funds from her trust, which she was probably entitled to do.

Whether she was entitled to do this depends upon exactly what you mean by the phrase "family trust." If your mother were the settlor (creator) of the trust and the trust were revocable at the time, she could withdraw funds from the trust and the bank would be right. If the trust were irrevocable and/or she was not the settlor, her power to withdraw money would be in question and the bank's assumption that what's left of the deposit in the personal account is subejct to probate could be legally unsound.

Check with a probate specialist, being sure to share the trust documents with him or her. Even if the bank deposit is part of the probate estate rather than passing by trust, if the probate estate is small enough, you may be able to escape a formal probate proceeding.