Legal Question in Wills and Trusts in California

My parents are setting up a trust for their house. I am getting 50% share, my nephew is getting 25% share and my other nephew is getting 25% My parents are not giving any share to my sister, because they say they have already given her a lot of money. The attorney says that he is putting my nephews name on the trust as executors and not my name, because my sister might want to contest the trust after my parents die. And since I have 50% share she would come after me with a lawsuit. He says I would still get my 50% but by not being an executor on trust I would not have any fiduciary responsibilities and less chance of being sued by my sister.

Is his point valid? If my name is not on the trust as a executor, does that not mean that I would have no say if any issues come about the trust? Is that not bad for me?


Asked on 12/08/15, 5:28 pm

2 Answers from Attorneys

Charles Perry Law Offices of Charles R. Perry

The decision as to who is trustee belongs exclusively to your parents. Legally, you have no say in the matter.

The choice of successor trustees has no impact on your share of the trust. You would be entitled to receive fifty percent regardless of who was the successor trustee.

It is impossible to evalue the chances of your sister bringing suit without knowing a lot of details about your family and the trust.

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Answered on 12/09/15, 2:52 am

I agree with Mr. Perry and write to answer the part of your question about control. You are partially correct about having no say. You would have no say in the basic administration of the trust. The trustee, however, would be under a binding legal obligation to manage the trust property in a way that is the most beneficial to you. That is called a "fiduciary duty." It means that the person with the fiduciary duty must exercise as much or more care in the handling of the trust as they would their own financial affairs AND what they do must be objectively reasonable (meaning not just they think it reasonable but that a normal rational person would agree it was reasonable). It also means that they must put benefit to you on the same level of priority as their own interests, or higher. If they fail to fulfill their fiduciary duty properly, they can be removed as trustee and forced to pay for any losses to the beneficiary their failure may have caused. So while you lose direct control, you gain substantial protections under the law by being a beneficiary without being a trustee.

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Answered on 12/09/15, 7:53 am


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