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Ch 7 Debtor Set to Receive Inheritance - Trust Contains Spendthrift Clause
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Having not read the trust instrument, my answers are assuming the facts you have provided and that the trust is a California trust, i.e. it has a CA choice of law provision. If the trust is not controlled by CA law, you will need to consult a lawyer from the controlling law jurisdiction.
Q1: If the trust requires distribution at the death of mom (the settlor in CA, often the trustor elsewhere), the bk trustee can compel distribution, just as the bennie could. To do otherwise would be a breach of trust by the trust trustee. But I like the sister
Q2: Bk trustee can, but whether they would depends on their style and how much is at stake.
Mark Jessee and I did a panel on this a few years back with a very thorough handout. Take a look at it. You will find some statutory law and case law that is relevant to your situation.
Hint: If you file, the trustee can only get 25% and if the bennie disclaims the interest prior to filing, then nada to the trustee. But dont file the case till you can cite and understand the law that supports my assertion. After all, I could be wrong! There also may be other alternatives, but without all the facts, I will not speculate.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green, Attorneys at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: (626) 449-8433
Fax: (626) 449-0565
pat@fitzgreenlaw.com
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