Legal Question in Wills and Trusts in California
confused over trust terms
My stepfather passed away in January and had a living trust that states I am to receive half of the estate (split between 2 children, my stepsister and i) free of trust, but the paragraph stating that has a title statement that says, �Distribution in the absence of exercise of power of appointment �. What does that statement mean? I ask that because I am the only child from my mother, who passed before him, who was the main bread winner, and she left everything in her trust to stepfather, free of trust, except for her home, which was to remain in trust for him to use until he passed. My stepfather never liked me and I always assumed he would try to make it impossible for me to receive anything, and left his daughter as trustee of his trust (the trust in now in his name). She has told me she has control of everything and has got an attorney now for herself and won�t answer any questions I have. If the trust states I get half, is she exercising the power of appointment? I don�t know what that means. It also has a no contest clause so also fear she might try and say I�m contesting the trust. Can she be in a position to not ever give me my half?
3 Answers from Attorneys
Re: confused over trust terms
you are entitled to your share of the trust unless you stepfather exercised his power of appointment. I don't have enough information to completely answer your question. It's faily standard language and powers of appointment are rarely exercised.
Regarding the second part of your question, I'd hire an attorney to represent your right now.
Re: confused over trust terms
The trust must reserve to the Trustor a power of appointment, specifically to direct trust distributions by reference to expercise of this reserved power, usually in a will.
Get a copy of the agreement and go over it with an attorney. When it comes to things like this what you get for free is usually worth what you paid.
Re: confused over trust terms
The statement "distribution in the absence of power of appointment", probably means that the trust is supposed to distribute (as it is stated) unless someone with a power over the trust affects this distribution. Powers of appointment are generally given to people to make gifts out upon their death, but the term is much too general to give you a specific answer without reading the rest of the trust. Basically, it only has meaning in context to the surrounding paragraphs... so you will need an attorney to read the whole section and advise you. My guess is that you are ok, your Sister probably does not have a power of appointment, but this is only a guess and should be interpreted by someone who can read the whole document.
With regards to whether your sister can deny you your portion of the inheritance, probably not but once again someone would need to read the trust. If the trust truly does leave you half of your Stepfather's estate, and there is no limiting provision giving your Step-Sister extraordinary powers, then most likely she will need to distribute out to you. Just because she hired an attorney is not cause for concern, in most situations a trustee should hire an attorney to assist them in the distribution and following the trust provisions. That being said, if you are concerned I would take the document into an attorney and have them advise you as to your rights and powers.
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