house Archives - Magellan Law, PLC

12
Aug 16
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Trustee sister telling brother that she doesn't want to sell the house

Trustee Doesn’t Want to Sell the House

Tags : house trustee trustee mismanagement

We get this a lot: Mom or dad just died. House was in a trust. Now your brother or sister is in charge of the trust (as the trustee). The trustee doesn’t want to sell the house or distribute anything. What are you (the beneficiary) supposed to do? Here’s a checklist.

Do you have a copy of the trust? (I’m not talking about a Certificate of Trust, or a deed to the house. I mean the actual 25 pages or more long trust document.) If you don’t have a copy of the trust, ask for one. If the trustee refuses to give you a copy of the trust, contact an attorney to figure out how to get a copy.
Have a trust litigation attorney read the trust document and determine what is supposed to happen.
Assuming the trust says the house gets sold and you are entitled to a share of trust property, how long has it been? What is in the house? If you have valuable antiques or artwork or collectibles, are those getting inventoried? Is the house secured? A trust attorney can help you with these details and figure out what specifically needs to happen. In a very simple case, if there is nothing of value in the house, the contents can be quickly liquidated (or donated), the house cleaned up, and the house listed for sale within a month or two. Sometimes, however, it can take longer. It shouldn’t take 6 months in most cases to clean out a house and list it for sale. One year is too long (in most cases).
Figure out if there’s a “No Contest Clause” in the trust. These can be danger, as discussed in a prior blog. You may need to take certain precautions before filing something with the court.
Discuss the next steps with your lawyer. If there is a No Contest Clause, he or she might file a Petition for Declaratory Judgment to get the court to determine that you won’t be “contesting the trust” by seeking to get a new trustee. There are basically two options. First, you can try to get the court to order the trustee to do what is needed. However, sometimes it’s just quicker in the long run to get a more responsible person appointed as trustee. If you decide that’s the way to go, have your trust litigation lawyer prepare and file a Petition to Remove Trustee and Appoint Successor Trustee.

If the trustee is also living in the house, your lawyer will help you file an eviction (called an Unlawful Detainer). This takes longer than you might like. But generally, you can get the person removed within 45 to 60 days.

If you have any questions, call us for a free consultation. We’re here to help!

21
Jan 15
2

Avoid Estate-Planning Pitfalls: Probate Assets vs. Non-Probate Assets

Tags : bank account house IRA life insurance non-probate assets probate assets retirement plan

You’ve heard of estates, but do you know what an estate is? An estate (in terms of probate law) is property – either physical or monetary. It can also include intangible items such as contractual rights, trademarks and patents. So, how is this property settled?

With an estate, it’s through probate. If there is a will, then “probating the will” involves the official proving of a will. The assets of a property are divided under that will.

When planning your estate—more specifically, when you work to determine how property is to be distributed in your estate plan—it’s important to understand the difference between the different types of assets, and how they are owned. Probate can be a technical and sometimes-complex aspect of estate planning. But if you understand a few of the terms, and take the time to set up an estate properly, you can avoid costly and time-consuming mistakes.

In Arizona and most other states, probate is a court in which estates are settled after a person dies or becomes incapacitated. For the purposes of this post, we will be referring to probate assets. Let me give you a couple of definitions:

Probate assets — These are assets that are left behind after someone dies or is incapacitated. These assets can only be controlled, managed or transferred by court order.

Non‑probate assets — These are assets that are handled or distributed without having to go to court.

Keep in mind that going to court isn’t necessarily a bad thing. Often, going to court is the only way you can resolve a problem or get guidance when there’s a disagreement.

To give you an idea of the differences between probate and non-probate assets, here is an example of each.

Probate assets:

Let’s say that your mother, Alice, owns a house and passes away. Alice has left a valid will, and the title for the home is in her name. In order to sell the house after Alice’s death, the title must be transferred out of her name. This is true even if her will specified what should happen to the house (for example, that it should be sold and the proceeds distributed to her kids). The change of title can only be done through probate court. Alice’s house is a probate asset.

Non-probate assets typically include IRAs, retirement plans, life-insurance policies and assets that are held in trust. But each of these requires a beneficiary in order to be classified as a non-probate asset. Without a specified beneficiary, these assets can only be resolved through probate court.

When you know whether an asset is probate or non-probate, you will know if you will need to resolve an issue in court.

But because of the complexity of this area of estate-planning or management, it’s best to find an attorney who focuses on probate law. You may think that dealing with an attorney can be intimidating, but it doesn’t have to be. In fact, a competent attorney will help you avoid costly, time-consuming mistakes.

Do you have any questions about probate and non-probate assets? I’d love to help. Please leave a comment below or contact our office.

Tag Archives: house

Aug 16

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Trustee Doesn’t Want to Sell the House

Jan 15

2

Avoid Estate-Planning Pitfalls: Probate Assets vs. Non-Probate Assets

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