A beneficiary or heir doesn’t automatically get a copy of a trust. Each beneficiary and heir is entitled to notice when a trust settlor dies and/or there is a change of trustee. Once the beneficiary or heir asks, in writing, for a copy of the trust then the trustee must provide a copy of the trust and all of its amendments within sixty days.

Once those sixty days have run, the beneficiary can petition the probate court to compel the trustee to provide a copy of the trust and its amendments. The beneficiary can also ask for attorney’s fees and court costs for having to file the petition. California law does not put any cap on the attorney’s fees and costs. This means the longer the trustee fights to be provided a copy of the trust, the more it will cost the trustee when he or she loses. Whatever amount the court awards for fees and costs is payable by the trustee personally. The trustee can’t use trust funds to pay.

The trust instrument determines the nature and scope of a trustee’s duty to account and report [Prob. Code §§ 16061, 16062]. The trust instrument may expand, restrict, or waive the duty to account and report, subject to certain restrictions. It is important to note that although the trust instrument may waive a trustee’s general duty to account when the trustee is not a disqualified person, a trustee nonetheless may be compelled to account “upon a showing that it is reasonably likely that a material breach of the trust has occurred” [Prob. Code § 16064(a)]. As such, a trustee cannot rely upon exculpatory language in the trust instrument to refuse to account to a beneficiary.

If you have cause for an Elder Abuse claim, you may file a Petition to Remove the trustee and/or ask for an accounting of the Trust. Otherwise, the first task the practitioner must undertake when representing a beneficiary is to review the trust instrument to determine whether the trustee owes a general duty to account or report, as well as the scope of that duty.

WFB Legal Consulting, Inc.–A BEST ASSET PROTECTION Services Group–Lawyer for Business




When you transfer assets into a living trust you are changing legal ownership of your assets from your name to that of the trust. Most people create a living trust with themselves as trustee, so you will still be able to use and control your assets, but they will technically be owned by the trust. When funding a living trust, ownership will be transferred from you to (Your Name), Trustee of the (Your Name) Living Trust. Note that items in the trust will continue to use your Social Security number. Make a complete list of the assets you want to transfer so that you are sure you don’t leave anything out.


One of the largest assets most people own is their home and this is likely an asset you want to be sure to transfer into your trust. You can transfer your home (or any real property) to the trust with a deed transfer, a document that transfers ownership to the trust. A quitclaim deed is the simplest method, however a warranty deed may be preferred, since it ensures you have good title when you transfer it and makes it easier for your trust beneficiaries to sell at a later time. You will want to check with an attorney about which type of deed is best in your situation. Once the deed is prepared, a real estate deed transfer must be filed with your county and you will likely need to pay a filing fee.

A deed transfer should not affect your mortgage, even if you have a due on sale provision. You should check with your title insurance (if you have any). You may be able to simply transfer it to the trust, or your title insurance company may require that the trust buy a new policy. Once the deed is transferred, you will need to change your homeowner’s insurance to indicate the trust as owner of the property. If you receive a real estate tax exemption, you will want to make sure that is transferred and you may need to show documentation of the trust to the taxing authority, such as a certificate of trust (a document your attorney can create that certifies the existence of the trust).


If you would like to transfer ownership of your car or truck to your trust, you need to first determine if your state will allow a trust to hold ownership of a vehicle (check the DMV web site or consult your attorney). You also should call your insurance company to be certain they will continue coverage once the transfer is made. To transfer ownership, you will need to obtain a title change form from your DMV and complete it, naming the trustee (as trustee of your trust) as new owner. Sales tax should not apply to the transfer. If the clerk tries to apply it, you may need to speak to a supervisor. Note that owning a vehicle in the name of a trust can be detrimental if you are in an accident. The other person may assume you are wealthy if they realize your car is owned by a trust and sue. If you own a boat, you will need to follow a similar procedure to transfer title.


To transfer assets such as investments, bank accounts, or stock to your living trust, you will need to contact the institution and complete a form. You will likely need to provide a certificate of trust as well. You may want to keep your personal checking and savings account out of the trust for ease of use.


You likely own many things that you don’t have actual written titles or ownership documents for, such as jewelry, furniture, collectibles, and the miscellaneous things that fill your home. To place them in your living trust fund, you can name them in your trust document on a property schedule (basically a list you attach to the trust document that is referred to in the document) and indicate that their ownership is being transferred to the trust. If any of these items are insured, be sure to transfer the insurance to the name of the trust.


There are some things that cannot or should not be placed in your trust. Individual Retirement Accounts (IRAs) cannot be owned by a trust, so these must remain in your own name. In some states life insurance policies cannot be owned by a trust, and if it is allowed it generally is not advisable since it may make the benefits taxable.


If you purchase or inherit items after you create the trust, you will need to transfer those items to the trust as soon as possible. If possible, when you purchase items, purchase them as trustee of the trust so they are automatically placed in the trust. To further protect yourself, you will want a pour over will. This last will and testament can be prepared by your attorney and will indicate that any items left in your name are transferred to the trust upon your death, so that your trust will be complete and provide all the benefits you intended.

Double check your list of assets to be certain you have moved them all to your trust. Ensuring that your living trust is properly funded will provide you with the protection you seek as well as the peace of mind that your affairs are in order.


A BEST ASSET Protection Services Group



A spendthrift trust is a kind of trust that limits or altogether prevents a beneficiary from being able to transfer or assign his interest in the income or the principal of the trust.  Spendthrift trusts are sometimes used to provide for beneficiaries who are incompetent or unable to take care of their financial affairs.

If a trust incorporates a spendthrift clause, the beneficiary is precluded from transferring his interest in either income or principal. Accordingly, the beneficiary’s creditors will not be able to reach the beneficiary’s interest in the trust.

The protection of the spendthrift trust extends solely to the property that is in the trust. Once the property has been distributed to the beneficiary that property can be reached by a creditor, except to the extent the distributed property is used to support a beneficiary. If a trust calls for a distribution to the beneficiary, but the beneficiary refuses such distribution and elects to retain property in the trust, the spendthrift protection of the trust ceases with respect to that distribution and therefore the beneficiary’s creditors can now reach trust assets.

A trust is called “discretionary” on the other hand, when the trustee has discretion (as to the time, amount and the identity of the beneficiary) in making distributions. Because the trustee is not required to make any distribution to any specific beneficiary, or may choose when and how much to distribute, a beneficiary of a discretionary trust may have such a tenuous interest in the trust so as not to constitute a property right at all. If the beneficiary indeed has no property right, there is nothing for a creditor to pursue. The statutes that follow this line of reasoning essentially provide that a trustee cannot be compelled to pay a beneficiary’s creditor if the trustee has discretion in making distributions of income and principal to begin with.

If the trustee of a self-settled trust (where the creator of the trust is also a beneficiary of the trust), has any discretion in making distributions, then the creditors of the settlor (creator) may reach the maximum amount that the trustee may distribute in his discretion to that particular settlor-beneficiary.