Remove a Holdover Trust Beneficiary from Trust Property
- February 16, 2021 - Trust Litigation,
I’m Mike Hackard from Hackard Law. We work at being one of California’s leading trust, estate and catastrophic injury law firms. Part of this is being up to date on common legal issues.
Being up to date means sharing know-how. Being up to date means sharing learning. Being up to date means sharing experience.
A common problem that many trustees face is how to remove a holdover beneficiary from trust real property – most often the decedent’s former home. The beneficiary may have lived with the now deceased trust maker, or settlor, at the family home before the settlor died. The beneficiary may have moved into the home after the settlor died. Or, the beneficiary may have rented the home without the trustee’s consent to someone who may or may not be a beneficiary after the settlor died.
What can be done? First let’s establish some basic facts:
The trustee holds title to the real property. The trustee does not have possession of the real property. Possession is held by someone other than the trustee. The trustee takes action.
The trustee files a Probate Court Section 850 petition to recover possession of the real property. Part of the petition may include an application for writ of possession after the hearing on the Probate Code Section 850 petition. The trustee will duly serve required documents on the appropriate personal representative, conservator, guardian or trustee.
Also, on each person claiming an interest in, or having title to or possession of the property.
Others identified in the statute. Time allowances are providing for discovery. There will be a hearing and the Court will consider and has the power to grant the appropriate relief.
Ideally, part of the relief will be the writ of possession that will be delivered to the local sheriff with instructions to evict and/or take possession of the property.
We have cases in the Superior Courts in both Northern and Southern California. We know from experience that not all courts treat this problem, process, and prosecution in the same way.
If this problem sounds familiar, you can seek out local counsel to assist you. And if you want to call Hackard Law, we can be reached at 916-313-3030.
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Attorney Michael Hackard
Michael Hackard is a top rated “AV” for over 20 years (“AV Preeminent is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”). Avvo also ranks him with their highest rating – “ 10.0 Rating – ‘Superb.’” Michael is also a “SuperLawyer” – an honor reserved for no more than five percent of attorneys in each state. [ Attorney Bio ]
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