This week’s question:
My parents live here in the Almaden Valley
and they have a living trust. My sister and I are very curious about what the
trust says but our parents say politely that it is none of our business. Since
our parents have said that my sister and I are the beneficiaries of the trust
and receive everything when they pass on, can’t we have a copy of the
trust and know all about it?
/s/Jimmy J.
Almaden Valley
Dear Jimmy:
You and your sister have some good questions, but your
parents’ business may be just that.
Since your parents are still living and presumably of
“sound mind”, they can presumably revoke (i.e., change, modify, or
cancel) any part of their trust. It is typically revocable during their lifetime.
Once one of your parents passes on, usually the trust
becomes “irrevocable”
as to the deceased person’s share, i.e., fixed, permanent, unchangeable.
Revocable living trusts are something like a will. And just
as a will “speaks” only as of the date of the testator’s
death, a revocable trust confers enforceable property interests in the
beneficiaries only at the time it becomes
irrevocable. Prior to that time, those beneficiaries have no rights
to the trust property, and thus no say in how it is managed. Or even what is
in the trust.
California Probate Code §15800 sets forth the
rule: “Except to the extent that the trust instrument otherwise provides
or where the joint action of the settlor [creator of the trust] and all
beneficiaries is required, during the time that a trust is revocable and the
person holding the power to revoke the trust is competent: (1) The person
holding the power to revoke, and not the beneficiary, has the rights afforded
beneficiaries under this division.”
Any interest that beneficiaries of a revocable trust have in
trust property is “merely potential” and can “evaporate in a
moment at the whim of the settlor”. A settlor with revocation power
retains the power and control of the trust estate and can with a stoke of the
pen divest the beneficiaries of their interest.
Be sure to discuss the above general principles with your
own attorney to see how they may apply to your own situation. There is really
no substitute for that.
You may also find a recent case helpful online, decided
September 27, 2011. Go to your favorite search engine and enter: Estate of William A. Giraldin or Christine Giraldin v. Timothy Giraldin. It
should be up on your screen in a heartbeat. It may be a little tedious, but
it’s good reading.
/s/Donald J. DeVries
Almaden Valley
Donald J. DeVries is an attorney practicing law in the
Almaden Valley. Past Almaden Times
articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com.
If you would like him to answer your question in his next Almaden Times column, you can reach him by
email at don@almadenvalleylawyers.com,
with “Almaden Times” in the subject line, fax at (408)268-6502, telephone
at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite
200, San Jose, CA 95120. Your matters are personal and private, so of course,
he will not disclose your identity or any details about your situation. Mr.
DeVries writes this column to provide you with general information about
important legal matters affecting California residents—not to give you
legal advice about your specific matter. No attorney-client relationship is
created by these articles. The law is complex and constantly changing and
varies from state to state. So you should consult an attorney before taking
any action that would affect your personal or business matters.
October 02, 2011
