Legal Question in Real Estate Law in California

Hi attorneys, I'm back with important questions:

My father made a two settlor trust in 2002. I didn't know it but he made his trust and another trust under my name. When he was signing trust documents, he did not transfer his real property into his trust. What he did was sell his property as a resale into my trust. He used a quit claim deed and a warranty deed. His trust was in my trust. He made me the original trustor. Question, in selling his real property to me doesn't that revoke his trust automatically? And if a trust is revoked can it be reopened to put assets into or do you need to have a new trust drafted over again? If someone who is not in the trust can that person legally draft up an affidavit without getting permission from the trustor? In other words after my father died can his revoked trust be used in any way? I know if a trust fails because of no funding you use a pour over will to put assets back into. Last question, is it true that if I have a trust does that mean that no one can get into my trust before I die? Thankyou all for your time and expertise


Asked on 1/27/14, 4:57 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I've read your question three times to see if it'd dawn on me what really happened here, and to see if there are any answerable sub-parts to this puzzle. I'm not sure I can offer any helpful advice, but here are a few comments:

1. In trust terminology, settlor, grantor and trustor all usually mean the same thing.

2. It's possible for a single trust to have two or more of the foregoing.

3. A sale requires both a seller and a buyer.

4. Why would selling property from X to Y "automatically" revoke X's trust? I see no connection.

5. A failed express trust can be revived by an equitably-presumed involuntary trust or trust substitute called a "resulting trust."

6. Anyone can "draft up an affidavit" -- but the question remains whether the affidavit is of any legal effect on anyone or anything.

7. Whether anyone can "get into your trust" depends upon its nature....most living trusts set up as will substitutes are revocable, and creditors can get at assets held in a revocable trust almost as easily as when held personally and directly. Revocable trusts are virtually useless as creditor protection.

I doubt that any of this data is going to solve your problem, however. I strongly suggest you have an initial (free?) conference with a wills-trusts-estates attorney in your neighborhood. Perhaps your father got things all messed up, or perhaps he did an incredibly sophisticated estate plan that defies easy understanding -- but more likely, somewhere in between.

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Answered on 1/27/14, 5:40 pm


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