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[CA] How can a beneficiary make sure an executor distributes trust assets according to the trust’s terms?
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My mother passed away 6 months ago and my brother is executor of the Will and Trust however he has decided that he deserves a larger share and is trying to negotiate with me. I'm ok with certain negotiations but I'd like to know what I should do and when I should do it, in case things go sour. By the way he lives in California but I am now living in France.
I'm sorry to hear about your mother's passing and the difficulties you're facing with your brother. Can you tell me if there is a written Will and Trust that outlines the distribution of assets?
Yes, there is. Amendments have been made to the Trust but it is possible he has destroyed this because it is not favorable to him.
Have you had any formal discussions or negotiations with your brother regarding the distribution, and if so, what was the outcome?
I have read the documents but I don't have copies. He has decided not to go through a lawyer and his state of mind is volatile, so we are trying to negotiate via emails and texts but I don't trust him and I don't know what he will do if I push too hard to go strictly by what is documented.
Is there anything else the Estate Lawyer should know before I connect you? Rest assured they'll be able to help with your inheritance dispute.
No.
Hey there! Welcome to our service. I'm Priscilla, an attorney with many years of experience. Just so you are aware, our service is a legal information-only site. No attorney-client relationship is formed from our conversation. I understand you're dealing with a situation where your brother, as executor, is negotiating the distribution of your mother's estate. Could you share more about the specific terms of the Will and Trust that might be in dispute?
Hi! I'll try to make this short and sweet. The Will states that everything should be split 50/50. The Trust says that I am entitled to the 50k life insurance policy (as my mother gave my brother 50k a few years ago for the downpayment of his house). There are 2 CDs: one for 100k and one for 130k. Those are supposed to be split 50/50 however my mother made an amendment a couple months before she died saying that she gave my brother 18k, so i should get 18k in addition.
My brother has either destroyed the amended part of the trust regarding the life insurance or is just refusing to acknowledge it. He was able to release 25k to himself and I am now struggling with paperwork to get the other 25k released to me.
The CDs were unblocked earlier in the year but he put them back in and they won't be mature until August and September of this year.
Thanks for sharing those details. Just to clarify, do you have any written evidence or documentation of the amendment to the trust that mentions the life insurance policy and the additional $18k? This will help in understanding the situation better.
There is no estate as she was living in my brother's house when she died. (the 2 CDs come from the sale of her house). I don't care about any accrued interest, her car, etc, just the Trust. By my calculations I should receive 283k. (50 +230 divided by 2, + 18) He can keep the rest. The last we spoke he said he could give me 140 . The biggest problem is that even if i were to agree to that figure or any other, I don't know if he'll actually do it. I was told I could have him arrested for conducting these affairs on his own and not going through a lawyer and that I could try to remove him as executor. I don't want to do that. I would like to scare him with a letter from a lawyer to ensure I get my share. I don't know if that's possible.
I took a photo of the page where she had handwritten the part about the 18k. I sent it to my brother so he is now acknowledging that. I don't have anything else. I assumed everything would go through a lawyer so I didn't think it necessary to make a copy. I do have a copy of the original Will though.
Based on your situation, there are several legal arguments and considerations in estate law that could potentially support your case:
The role of an executor is to act in the best interest of the beneficiaries and to administer the estate according to the terms of the Will and Trust. If an executor is not fulfilling these duties, it may be grounds for removal or legal action.
In California, where your brother resides, the Probate Code requires executors to act with impartiality and transparency. Any destruction or concealment of documents related to the estate could be considered a breach of fiduciary duty.
Handwritten amendments to a Trust, known as holographic amendments, can be valid if they meet certain legal requirements, such as being in the testator's handwriting and signed by them. The photo you have could serve as evidence of your mother's intentions.
The distribution of assets, such as CDs and life insurance policies, should follow the terms outlined in the Trust and Will. Any deviation from these terms without mutual agreement could be contested.
OK. Is there something I should do now to ensure he fulfills his obligation as executor or is it best to wait and see what happens and take further action if I do not receive what is owed to me ? Is it even a possibility to have a lawyer send him a letter (maybe with the above information) to "encourage" or instruct him to do what is legally correct by a certain date (ie the date the 2 CD accounts reach maturity and are unblocked?
It's definitely possible to have a lawyer send a letter to your brother to encourage him to fulfill his obligations as executor. Here are some steps to consider:
- Gather Evidence. Keep the photo of the handwritten amendment safe, as it can serve as evidence of your mother's intentions. Under California law, a trust amendment is generally valid if it follows the modification method the trust itself sets out (CA Prob Code § 15401). Also, retain any communication with your brother that acknowledges this amendment.
- Consult with a Lawyer. Reach out to a lawyer who specializes in estate law. They can help you draft a formal letter to your brother outlining his duties as executor and reminding him of his legal obligations to distribute the estate according to the Will and Trust. In California, a trustee must administer the trust according to its terms (CA Prob Code § 16000), deal impartially with all beneficiaries (CA Prob Code § 16003), and keep beneficiaries reasonably informed about the trust and its administration (CA Prob Code § 16060).
- Draft a Lawyer's Letter. The lawyer can create a letter detailing the legal implications of not adhering to the terms of the Will and Trust. This letter can also set a deadline for when you expect the distribution to be completed, such as when the CDs mature.
- Consider Legal Action. If your brother does not comply after receiving the letter, you may need to consider legal action. This could involve petitioning the court to enforce the terms of the Will and Trust or to remove him as executor if he continues to act against your interests. Courts can also order remedies for a breach of trust, such as compelling the trustee to pay what is owed (CA Prob Code § 16420).
- Monitor the Situation. Keep track of any developments and maintain open communication with your lawyer. They can advise you on the best course of action if your brother does not fulfill his obligations.
Fantastic! Thank you so much for your help.
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