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You are here: Experts > Money > Wills/Estate Planning > Trusts & Estates Law > failure to notify benficiary in CA
Expert: Keith Northington - 11/2/2009
Question
QUESTION: If a beneficiary was never notified upon the death of a person, is it possible to get a copy of a presumed living trust and will for an estate that did NOT go through probate in CA? Are there civil or criminal legal consequences for an executor who fails to notify the beneficiary for years and may have kept a portion or all of the gift and if so, what would they be?
ANSWER: This is a somewhat tricky situation. If you know for sure that you were named as a beneficiary in the TRUST, then you have the right to send the trustee (or have your attorney send the trustee on your behalf) a certified letter asking the trustee for a copy AND an accounting statement for each year the trust has existed. It's better for your attorney to send the trustee the letter so that the trustee will be less likely to ignore the request if it came only from you. If you think you were a beneficiary in the will (and even if you weren't) you can force probate open by asking your attorney to open up probate so that the judge can ask whoever has the will to produce it for court. The only valid reason for NOT probating the will is because maybe the decedent had no assets left to be probated OR if someone had been granted a power of attorney to manage the decedent's affairs while still living, the POA could have gotten control of all remaining assets and there may not be anything left to be probated. Do you have details about what you should have received from the trust OR the will? Are there other beneficiaries involved besides yourself? At some point you will need to hire an attorney experienced in both TRUSTS and PROBATE to assist you. tiekh@yahoo.com Probate Researcher
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QUESTION: OK, now I'm confused. Wouldn't the certified letter go to the executor? We are talking many years later, after the assets were distributed to other beneficiaries and the trust no longer exists. The executor is located in another state. I assumed that it was a living trust because there was no record with the County Clerk and isn't the whole point of a living trust or other such instrument to avoid probate? I was to receive 1/3 of the estate and there are two other beneficiaries who are not cooperative or available.
Answer
Your posting states there is a trust AND a will, but you don't seem to be sure which one specifically names you as beneficiary. The trust and the will are 2 different documents that are handled independently of each other--the will in probate court and the trust outside of court, privately by the trustee. First check at the courthouse to see if a will was probated and get a copy to see if you are named beneficiary in the will (person who handles the will is called executor and is NOT called a trustee), and if you think you are also a beneficiary in the trust, if you know who the trustee is (the person who manages the trust, who is oftentimes the same person as the executor), then contact the trustee. If you are NOT a beneficiary in the trust he does not have to provide you with information, but you probably are. tiekh@yahoo.com Probate Researcher
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