Q: Can I open a probate case because the medical records never went to court ‘ prove the truster was incapacitaded
The beneficiare have power of attorney went the truster was in the hospital stroke 14 months before the living trust was made
A:
In California, if you believe that a living trust was created when the trustor (the person who created the trust) was incapacitated and there is evidence to support this claim, such as medical records, you may have grounds to challenge the validity of the trust. However, opening a probate case may not be the appropriate course of action in this situation.
Instead, you might consider the following steps:
1. Consult with an experienced estate planning or elder law attorney who can review the specific details of your case and advise you on the best course of action.
2. Gather evidence, such as medical records and witness statements, that demonstrate the trustor's incapacity at the time the trust was created.
3. File a trust contest in the appropriate court, arguing that the trust is invalid due to the trustor's lack of capacity at the time of its creation. This is typically done in the civil court system rather than through a probate case.
4. If the court determines that the trust is invalid, the trustor's assets may be distributed according to their previous estate planning documents (if any) or California's intestate succession laws.
It's important to note that the fact that the beneficiary had power of attorney does not automatically invalidate the trust. The court will consider the specific circumstances surrounding the creation of the trust and the trustor's mental capacity at that time.
Given the complexity of such cases, it is crucial to work with an experienced attorney who can guide you through the process and protect your rights.
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