One of the advantages of creating a revocable, living Trust is the ability of the successor Trustee to quickly and smoothly take control of the Trust assets after the Settlor (i.e., Trust creator) dies. But this can also be a burden to a beneficiary, or a disinherited heir, who intends to contest the Trust terms. It takes time to prepare, file, and have the Court hear a Trust contest. In the meantime, the Trustee of the Trust is typically free to go about her business managing, and even distributing, Trust assets to the named beneficiaries—an alarming prospect to a contesting beneficiary. The Trustee may even be able to empty the Trust of assets before the Trust contest is ever resolved.
Therefore, it is the contesting beneficiary’s duty to seek assistance from the Court to freeze the Trust assets, or at least put restraints on their transfer, pending the outcome of a Trust contest (many of the same methods also apply to Will contests, but a Will cannot be administered until after an Executor is appointed and the contest will prevent an Executor from being appointed—not so in Trust administrations).
What can a contesting beneficiary do in this situation?
In California, the rules of general civil procedure apply to Trust and Will cases. This allows a party to a Trust or Will matter to use civil discovery procedure, civil motions, and other forms of pre-judgment relief, such as Temporary Restraining Orders and Preliminary Injunctions (CCP 525 et seq.). Here are a few actions a party can take to preserve Trust assets:
1. Lien on Real Property– Notice of Pendency of Action (or “Lis Pendens”, I’ll refer to it as a lien in this post) is one of the easiest ways to secure real property pending the outcome of an underlying Trust and/or Will action. But there’s a catch. The underlying lawsuit must involve a Real Property Claim, which is defined as one that would affect title to, or the right to possession of, specific real property. See California CCP 405.4. In other words, the lawsuit must directly relate to who will possess title to the real property. Thus, suing a Trust that has real property may or may not be enough to establish a Real Property Claim.
For example, suing a Trustee for not managing rental property correctly is not a Real Property Claim because you would not be challenging who holds title, your just challenging the management of the real property by the Trustee. Whereas, suing a Trust for exclusion of a beneficiary who would have had a right to receive title to real property had the Trust not been improperly amended shortly before death would qualify as a Real Property Claim because it affects who ultimately will hold title to the subject real property.
The advantage of using a Lis Pendens lien is that it is easy to prepare and record. Once recorded it automatically secures the real property and prevents the property from being sold or refinanced until the lien is released. The disadvantage of using a lien is that if you file one without a Real Property Claim at issue in the underlying suit, then you can be held liable for the opposing party’s attorneys’ fees and costs incurred to set aside the lien. So this type of lien should only be used when there is a proper basis to do so.
2. TRO and Preliminary Injunctions. Trust and Will cases can be subject to Temporary Restraining Orders (TRO) and Preliminary Injunction to ensure that the Trust assets are not wasted. But just as in civil matters, TRO’s and injunctions are not easy to obtain from the Court. They are considered extraordinary remedies and you must establish (i) a likelihood of prevailing on your claim, and (ii) a right that cannot be adequately compensated by money damages. The classic example is real property, which is considered unique under the law.
However, it is possible, and I have had cases, where a TRO and injunction are ordered by the Court to ensure that a Trustee is not personally taking money from the Trust. There has to be proof that the Trustee is taking money, but with that proof it is a possibility to obtain an injunction that will protect Trust assets until the underlying contest is resolved.
My next post of this topic (Volume 2) will include: (1) Petition for Instructions and Blocked Accounts, (2) Ex Parte Petition to Suspend Trustee and (3) Trustee’s Bond.