Legal Question in Wills and Trusts in California

My brother is the trustee of my father's estate. I hired an attorney to help me and he exhausted my entire budget for this matter in just a few months. It is now necessary for me to act in pro per. I learned from the attorney that because of the in pro rata clause in California probate law, my brother has the legal right to decide what my inheritance will be. I also learned that my brother can ask any dollar amount he wants as compensation for his work as trustee. He wants to assign me my father's primary residence and a small amount of cash. This residence is too large and expensive to maintain for me. I would need to sell the residence and may be financially drained by maintenance and taxes while trying to sell it. I would like to suggest an alternative inheritance to the court. My brother agreed to allow me to suggest an alternative inheritance but said that he may not accept it. He seems to have decided what he would like from the estate and wants to give me the things that do not work for him. Is there a way that I can legally present and alternative inheritance to the court and potentially have it accepted?

Asked on 7/31/11, 7:00 pm

2 Answers from Attorneys

George Shers Law Offices of Georges H. Shers

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While your brother has a great deal of discretion as the trustee, that does not mean the probate judge will automatically accept what he wants. He will lean toward the appointed trustee but also knows lay people often do not handle matters properly. You need to clearly express in writing what the situation is and why your brother's plan does not comply with the intent of the Trust. Make sure that you have accurate figures and not just guesses [look up what the property taxes and utilities are, how much can you rent the house out for, sales price, etc. You have to give the judge well thought out, complete analysis of alternatives and what effect they have on your brother's share.

There is a set percentage based upon the value of the assets that the trustee is paid; he has to show what was done for any extraordinary work and does not have the ability to charge for what ever he wants.

Answered on 7/31/11, 8:53 pm

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