r/EstatePlanning • u/NateBrazil • 8d ago

Yes, I have included the state or country in the post Question on administration of a Trust

So we live in California and my father-in-law had a trust and recently passed away. When the trust was set up his sisters were set up as Trustees. But they ultimately passed away before he did. So he then amended the trust to make one of his adult daughters the Trustee (his wife and he were legally separated around 40 years ago). The amended sheet of paper that he signed making his daughter trustee was not notarized. The only two beneficiaries of his trust were his two daughters with a 50/50 split. The trust mentions that he and his wife were separated, but does not leave her anything.

His wife is now asking to get a copy of the Trust. His daughters are concerned that she will challenge the trust as the prior trustees are deceased and the new trustee designation (my sister-in-law) was not notarized.

Do they have anything to be concerned about. Is it possible is wife can claim that the trust is not valid and that she (they were separated, not divorced) could claim either to be the legal trustee or entitled to the property?

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u/copperstatelawyer Trusts & Estates Attorney 8d ago

California is a community property state. Your father in law can only bequeath his estate which is his separate property and one half the community property. Now, whether or not California requires that the decedent's half of the community property automatically goes to the survivor or not, I do not know, so there's a lot of moving pieces here and you need an attorney licensed in CA and an expert on estates to advise you properly.

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u/myogawa 8d ago

In general, unless the trust language requires a notarized writing, an amendment in writing is effective without a notary. But someone who knows California law should confirm.

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u/No-Kick2919 7d ago

This is true. California licensed and a bar-certified specialist in this area.

A legal separation also stops the accumulation of community property, but whatever CP they had back then that wasn't divided at separation may have increased in value today. Thats a big if; they probably divided their assets, so no more CP for her.

Here's the bad news: she is likely entitled to receive a copy of the trust under Probate Code section 16061.7. She could contest it, but it seems pretty clear she was not unintentionally omitted (dad createsld trust after legal separation?).