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fathers will and greedy sneaky lying older brother


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#1 caligirlsusan

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Posted 02 February 2013 - 03:11 PM

My dad passed away on Nov. 3rd 2012 leaving everything he owned in his trust. I have 2 brothers. The oldest one being named the executor of my fathers will. We 3 children are recognized in his will. His wife passed before him.

This is what happened:
My older brother never called me to tell me our dad had passed away. As a result I missed his funeral. I found out he passed from my son who happened to hear it around town in December 12th. I was in shock. Later that evening I called my brother to find out what happened. He gave me the details. At the end of the conversation I asked my brother what was happening to his estate. He said dad left everything to him. I was shocked again because I was always daddy's girl. I believed that was the end.

I was never told there was a trust. I had to go to the recorders office in San Diego and get a copy of the death certificate then on to get a copy of the will.

Over the last few years I specifically asked my brother a few times if dad had a will. He told me no on every occasion that I asked. Now I found out he knew there was a will and a trust but didn't want me to know. No one has even sent me a copy of the trust yet. I investigated and found the attorney that did the trust and today I am sending out a demand letter to him and my brother.

My questions are:
Is there any penalties for my brother not telling me any of this?
What if I get the trust and we 3 children are named beneficiaries? If we are how would I prevent him from selling everything? I know there is no money left but there is a home with property and acres of land free and clear.
Lastly if we are not beneficiaries and he is the only one, can I object or appeal my dads decision in court?
My dad was 92 when he died and in poor health.
My brother also has my dads power of attorney. He has purposely kept all this information from me.
We all live in the same town 7 miles apart. He has lied on many occasions about issues going on with my father. My brother deposited the will in Probate 2 weeks after he passed.

#2 Tax_Counsel

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Posted 02 February 2013 - 04:15 PM

My condolences on the death of your father. The rule that applies in every state but Louisiana is that adult children have no right to inherit anything from their parents. Thus, a parent may completely cut off an adult child from inheriting even a penny with a well drafted will, use of a trust, beneficiary designations on financial accounts, etc. As a result, a contest to will simply based on the fact that the will cuts you out and leaves you nothing would not succeed. You instead would need to show some defect in the will (e.g. your father was not competent to make a will, the will was improperly executed, undue influence, fraud, duress, etc) to get it tossed out. The same is true for any trust that your father set up.

No one had a responsibility to tell you about the will prior to your father’s death. A will has absolutely no effect until the death of the person who made the will. The person holding the will simply has a responsibility to lodge the will with the appropriate court in a timely fashion after the maker of the will dies. Your brother seems to have done that here. The estate executor in most states does have a duty to notify the beneficies and heirs of the will as part of the probate proceedings. You may also get copy of the will from the court because it is a public document once it is lodged for probate.

States vary on what they require as to notification for trusts. Thus it matters in what state the trust is settled. While it’s likely that is the state where your father resided when he died (which I assume is California), it is possible it is settled in some other state. If it is settled in California, then California Probate Code section 16061.5 states:

16061.5. (a) A trustee shall provide a true and complete copy of the terms of the irrevocable trust, or irrevocable portion of the trust, to each of the following:

(1) Any beneficiary of the trust who requests it, and to any heir of a deceased settlor who requests it, when a revocable trust or any portion of a revocable trust becomes irrevocable because of the death of one or more of the settlors of the trust, when a power of appointment is effective or lapses upon the death of a settlor under the circumstances described in paragraph (3) of subdivision (a) of Section 16061.7, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of a contingency related to the death of one or more of the settlors of the trust.

(2) Any beneficiary of the trust who requests it, whenever there is a change of trustee of an irrevocable trust.

(3) If the trust is a charitable trust subject to the supervision of the Attorney General, to the Attorney General, if requested, when a revocable trust or any portion of a revocable trust becomes irrevocable because of the death of one or more of the settlors of the trust, when a power of appointment is effective or lapses upon the death of a settlor under the circumstances described in paragraph (3) of subdivision (a) of Section 16061.7, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of a contingency related to the death of one or more of the settlors of the trust, and whenever there is a change of trustee of an irrevocable trust.

(B) The trustee shall, for purposes of this section, rely upon any final judicial determination of heirship. However, the trustee shall have discretion to make a good faith determination by any reasonable means of the heirs of a deceased settlor in the absence of a final judicial determination of heirship known to the trustee.


Thus, if the trust was a revocable trust that became irrevocable when your father died, the trustee should have provided you the trust information as provided above. Have you been provided the trust information yet? Your post implies you haven’t yet received it. Have you made a written request for the information? If not, I suggest that as your next step. Make sure you copy his lawyer on that request, too. I suggest you send it by certified mail return receipt requested, with a copy by regular first class mail.

Once you have a copy of the will and the trust, you can go from there to figure out your next step. You might want to contact a probate attorney now so that you know what you need to do and what deadlines there are. If you fail to file any trust or will contest by the time required in the probate code, you may lose your chance to contest the distribution of the trust and estate to your brother.

#3 knort4

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Posted 04 February 2013 - 07:11 AM

Does the will mention any assets that are left? I'm surprised that he didn't put all of his assets into the trust. One problem you might have is that if you were not named as a beneficiary in the trust then the trustee might not have any legal obligation to provide you with a copy, but a trust attorney can help advise you about whether you have any options.

#4 pg1067

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Posted 04 February 2013 - 08:40 AM

My dad passed away on Nov. 3rd 2012. . . . My older brother never called me to tell me our dad had passed away. As a result I missed his funeral. I found out he passed from my son who happened to hear it around town in December 12th. . . . I was always daddy's girl. . . . We all live in the same town 7 miles apart.


There's a "smell test" issue here. You were "daddy's girl" and lived in the same town seven miles away, but you didn't learn about your father's death until five weeks after it happend (and then only learned about it because your son "happened to hear it around town")??? If he was in poor health and you lived so close, one would expect "daddy's girl" to be visiting or at least talking with him on at least a weekly basis. One would expect at least a call or visit on Thanksgiving. I only point this out because you seem to be implying that your father never would have left you out of his estate plan because you had a close relationship. But the facts in your post suggest you didn't really have a close relationship.

Also, how is it that you purport to know he left "everything he owned in his trust." You said you were "never told there was a trust" and that "[n]o one . . . sent [you] a copy of the trust." So how it is that you now believe a trust exists?


I had to go to the recorders office in San Diego and get a copy of the death certificate then on to get a copy of the will.


San Diego, Texas? San Diego, California? Not sure if there are other states that have a city called San Diego.


Over the last few years I specifically asked my brother a few times if dad had a will.


Why would you ask your brother as opposed to your father?


Is there any penalties for my brother not telling me any of this?


Nothing in your post suggests your brother had any obligation with respect to your father's estate planning documents while your father was still alive. You referred to your brother as "executor of [your] father's will," but it sounds like he was only nominated in the will to serve in that capacity and that probate was never filed (as opposed to simply depositing a copy of the will with the probate court). Without knowing the state whose laws are applicable or anything about the terms of the trust, we cannot know if you are or were entitled to a copy or whether your brother might be subject to any "penalties."


What if I get the trust and we 3 children are named beneficiaries?


I don't understand the question. If you're named as beneficiaries, then you're named as beneficiaries.


If we are how would I prevent him from selling everything?


Why would you want to prevent him from selling things? Perhaps the trust requires liquidation of assets. If it does, then you should not be seeking to prevent him from selling things.


Lastly if we are not beneficiaries and he is the only one, can I object or appeal my dads decision in court?


You could file a challenge to the trust, but cannot do so simply because you're unhappy that your father didn't leave you anything (if, in fact, that is the case). You would need to prove something like that your brother used undue influence or that your that was not mentally competent at the time he created the trust. Do you have any evidence that anything like that happened?

#5 pg1067

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Posted 04 February 2013 - 09:00 AM

Thus, if the trust was a revocable trust that became irrevocable when your father died, the trustee should have provided you the trust information as provided above.


That's not quite accurate. The quoted statute (Cal. Prob. Code Section 16061.5) only requires the provision of information to persons who expressly request it. The poster was (if a trust actually exists) entitled to notice, pursuant to Section 16061.7, of the following: (1) The identity of the settlor or settlors of the trust and the date of execution of the trust instrument; (2) The name, mailing address and telephone number of each trustee of the trust; (3) The address of the physical location where the principal place of administration of the trust is located, pursuant to Section 17002; (4) Any additional information that may be expressly required by the terms of the trust instrument; (5) A notification that the recipient is entitled, upon reasonable request to the trustee, to receive from the trustee a true and complete copy of the terms of the trust; and (6) a statement that the recipient of the notice may not contest the trust after the later of 120 days after the date of the notice or 60 days after receipt of a copy of the terms of the trust.

#6 Guest_FindLaw_Amir_*

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Posted 04 February 2013 - 10:43 AM

I’m sorry to hear about the death of your father. I know the time after the passing of a loved one can be difficult.

It sounds like you have a lot of questions about this trust. Due to the nature of the subject, review by a legal professional is advised. To that end, you may want to consider signing up for a LegalStreet plan. With the plan, you have unlimited access to a lawyer to ask your questions as they come up and the plan also offers discounted legal representation should you need it.

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