Paso Robles, CA asked in Real Estate Law, Banking and Probate for California

Q: I’m the trustee for a special needs trust the beneficiary is my sister inlaw

I am trustee my husband is co trustee of his mothers trust and each share one half the sisters half will be a 3 party SNT FOR 21 years she was not on ssi age 37, she suffered from depression and her mom was worried and wanted to make sure she would qualify for assistance. I am the executor / trustee married to co trustee /beneficiary , real Estate agent and employed at the bank where trust funds and mortgage for property is held , she now wants to sue me because I sold the house 2years after I conveyed house to her trust it was Jr to the property with the first mortgage the house That we conveyed to us with the homestead exemption.the lenders called the loans and I sold the house that was collateral. I didn’t prove the will or file the Living trust or the SNT with superior court, the SNT beneficiary SAYS THAT SHE CAN probate the estate BECAUSE I DIDNT HAVE THE WILL PROVED. Can the judge force me to give the court accounting? Settlor died in 2004.I’m statute of limitations past?

1 Lawyer Answer
Bill Sweeney
Bill Sweeney
  • Probate Lawyer
  • San Juan Capistrano, CA
  • Licensed in California

A: A California special needs trust that has been validly created avoids probate. Pursuant to the provisions of the special needs trust, a trustee has a fiduciary responsibility for the management of trust assets. A breach of that responsibility can create liability for the trustee. If the special needs trust was created upon the death of the trustor(s) by the terms of the trustor(s) revocable trust there may have been a "pour-over" Will created at the same time the revocable trust was created. If there was such a Will, Probate Code Section 8200 provides:

"(a) Unless a petition for probate of the will is earlier filed, the custodian of a will shall, within 30 days after having

knowledge of the death of the testator, do both of the following:

(1) Deliver the will to the clerk of the superior court of the county in which the estate of the decedent may be administered.

(2) Mail a copy of the will to the person named in the will as executor, if the person's whereabouts is known to the custodian, or if not, to a person named in the will as a beneficiary, if the person's whereabouts is known to the custodian.

(b) A custodian of a will who fails to comply with the requirements of this section shall be liable for all damages

sustained by any person injured by the failure.

(c) The clerk shall release a copy of a will delivered under this section for attachment to a petition for probate of the will or otherwise on receipt of payment of the required fee and either a court order for production of the will or a certified copy of a death certificate of the decedent.

(d) The fee for delivering a will to the clerk of the superior court pursuant to paragraph (1) of subdivision (a) shall be as provided in Section 70626 of the Government Code. If an estate is commenced for the decedent named in the will, the fee for any will delivered pursuant to paragraph (1) of subdivision (a) shall be reimbursable from the estate as an expense of administration."

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