Legal Question in Wills and Trusts in California

Re: Declaration of Trust

You could have some problems.

A declaration of trust is not a will. It is a vehicle designed to help avoid probate and estate taxes.

The problem is that the trust must be "funded", which means that the title to things, such as cars or bank accounts, should be put into the name of the trust. (There are exceptions, but this is generally the case).

Then, when one person dies, there are usually 2 or three trusts formed ... the Survivor's Trust, the Bypass or Exemption Trust, and possibly a Marital Deduction Trust. The only way to know this is to read the trust. The successor trustee should have done this at the time of your mother's death.

Let me know if I can help.

Re: Declaration of Trust

I am not sure what your questions are really about. Over ten years ago a declaration of trust was prepared. Something must have changed in that period of time. It will depend on what the terms of the trust are and the status of all the assets at this time. More importantly, since one of the parties has passed away it appears that you did not get an attorney to help deal with the trust after your mother-in-law died. My advice to you immediately would be get an attorney who deals in probate/estate planning. It is quite important everything be coordinated so that there are no problems of the time of your father-in-law's death. Don't wait to the last-minute and find out to you needed to do something while he was alive or in good enough health that he could have aided in doing it. That is one of the biggest mistakes I find in my estate planning practice. People wait until somebody dies and then come in to find out that they waited too long, possibly causing them time, money and a great deal of aggravation.I have been practicing law in this legal area for over 30 years and understand your problem well. You have to make sure that everything that should have been done was done, and completed correctly. The intent is that the trust will avoid probate. The problem is if the assets are not placed into the trust legally, properly and timely it will have to go through probate just go into the trust. That also assumes that the areas in existence a well that allows that. Any attorney must eat all the documents to make sure everything was done correctly to begin with and is completed as of now. I practice in the S.F. Bay Area and if you wish to contact me call at 925-945-6000.

Re: Declaration of Trust

The trust can prevent probate, but it must be "funded," in that your father-in-law's assets should be titled in the trust's name (with some exceptions, like retirement plans, which can name the trust as a beneficiary). Without funding, probate will likely be necessary, and without a pour-over will, the assets won't even make it into the trust during probate. I'd suggest having an attorney review the trust and related documents to make sure they still do what they're supposed to, and to make sure there wasn't any work required after your mother-in-law's death--trusts often have sub-trusts forming at one spouse's death.