Legal Question in Wills and Trusts in California

My mother's trust stated the following in her trust. "My trustee (her best friend) is aware that it is my desire that my real property be maintained for my grandson to use as his residence. However, I trust my trustee to make whatever decisions necessary to ensure the well being of my grandson, including the decision to sell my residence and to replace it with another real estate purchase."

My son was 7 when my mother died and we have been living in the paid off condo for more than 14 years. The trustee is stating that there is no more money in the trust and she is thinking of selling the condo. She stated that if we wanted to stay, the new owner would be okay with that but we will need to start paying rent. My questions are 1. if she sells the condo, doesn't she have to purchase another home for him to live in? 2. If the answer to question 1 is yes, can he decide where to purchase the house. Meaning he wants to move to Florida and out of California. He is now 21 years old.

Thanking you in advance for your time.


Asked on 8/19/15, 3:25 pm

1 Answer from Attorneys
Len Tillem Tillem McNichol & Brown

The trust isn't very specific, but the language implies that the trustee should buy another home, if it's feasible (because, let's face it, it may not be feasible). Since the trust is for your son's benefit, and not yours, even if your son were to move to Florida and the condo wasn't sold, the trustee would have to start charging you rent, if only because the trustee has a duty to manage the trust for the benefit of your son only, and not others. While your son was a minor, the situation was different.

Can your son decide where a new home should be? The trust doesn't say so, but the trustee has a duty of good faith and fair dealing and should consult with your son, now that he's an adult, regarding the purchase of a replacement home. Can the trustee be forced to buy a home in Florida? Not without a court order. Your son could hire an attorney and petition the court for an order instructing the trustee to buy a new home in Florida (or wherever your son wants to move to).

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Answered on 8/19/15, 3:37 pm


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