Hi, This is Marc Herbert from Herbert Law Office with the Question of the Week. Yesterday, I was asked by a client what happens if the terms of the trust or the will that I’m a beneficiary for are being violated by the trustee or the executor. So the first thing you need to understand is, as an heir or a beneficiary, you have definite rights under California law, and those rights can be affected somewhat by the trust or the will that names you as a recipient.
The person who created the will or trust could give you only certain property or give you certain property over time. There can be some restrictions on the amount that you would receive, but the first thing you need to know is that you’re entitled to a copy of that will or trust within 120 days of your loved one passing on.
After a year, you’re entitled to a full accounting of everything that has happened, all the actions taken by that trustee or that executor. So a lot of people think, well, the executor and trustee, they have a lot of authority. They can do pretty much whatever they want to do. And that’s two different things. Now, they do have a lot of authority.
They often have a lot of discretion given to them by the loved one who created that document. But they also have a lot of obligations. They can’t just do whatever they want. They have to follow the directions that are in the will and the trust. And one of those directions is going to be taking care of the beneficiaries.
So executors and trustees have a lot of authority. They have a lot of discretion, but they also have a fiduciary duty to do what’s best for financial elite, for the heirs and beneficiaries. So my rule of thumb is, if your loved one passed away less than 120 days ago, you’re probably okay if they passed away between 120 and 365 days ago.
You probably want to start thinking about moving forward with an attorney. But if it’s been a year or more and nothing has happened, you haven’t received a distribution, you haven’t received a copy of the document. You haven’t received that accounting, then you definitely want to get an attorney involved most of the time. So the first step is really to make a written demand on the executor or the trustee.
After 120 days saying Dear trustee, I believe I’m a beneficiary of this trust. It’s been 120 days under California law. I’m entitled to that trust, and I want it as soon as you make that written demand. The trustee has 60 days to provide it. So 60 days go by. If there’s no action taken, then yeah. My approach is always to send a warning shot and tell them, Look, you’re in violation of the California law.
You’re probably in violation of the trust, and you as trustee can be removed. You can be in trouble if this ends up in court. Now, I always like to keep my clients away from court as much as possible, try to resolve things informally. But if the executor or a trustee refuses to provide a copy of the document, refuses to provide a full accounting after a year, refuses to even respond, you do always have the option for a formal solution, which is through a probate court, so we can file a petition to remove the trustee, to get that accounting, to get that distribution, and to basically force the trustee to honor the terms of that will
or that trust. Now, the backup question I got was, well, the trust has what’s called a no contest clause on it. The trustee is telling them if you go to court, you lose your inheritance. And it’s really important to understand a no contest clause. 99 times out of 100 is a restriction on challenging the document itself. Most no contest clauses do not prevent the beneficiary from forcing the trustee to follow those directions.
So a no contest clause prevents a legal challenge to the trust itself, not the performance or lack of performance by the trustee under its terms. So you can go to court and assert your inheritance rights under California law and the terms of that trust without worrying about getting disinherited. Most of the time, obviously, I would need to see the document to confirm that.
But we write a lot of trusts here. We use no contest clauses all the time and virtually every single time. It is a restriction on challenging that document. But still, you as an heir or beneficiary, have your inheritance rights fully protected. So here at Herbert law office, we help a lot of people to receive their inheritances faster and fully by going through the documents with you, walking you through your options, and then letting you decide how you want to handle the pursuit of your inheritance rights.
If you would like to set up a free consultation to talk over those things, just give us a call at 6612739007. We’ll talk to you soon.
