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By: Scott Grossman on February 22nd, 2019

Dividing Tangible Property Held by The Trust

We’re often asked by our clients of trust litigation cases how dividing tangible personal property that’s held by the trust works?

I want you to understand tangible personal property means items that you can physically grab. I’m not talking about money, and I’m certainly not talking about real estate. Typically what we’re talking about are things that were in the settlers’ home at the time that they died. Family photos, furniture, clothing, jewelry, artwork, things of that nature. Exactly how dividing tangible personal property is going to be handled is going to vary from case to case. When we’re able to get cooperation from the trustees’ attorney, we can pick a day for everybody to show up. Then we’ll set a process in place everybody will show up at agreed on an agreed date at an agreed time and it’ll be typically picking one person goes the next person goes and so on until everything is taken from the house. If that’s the set up be prepared to take things with you that day whether that means it’s going to fit in your car you’ll need a rental truck, a moving company, whatever it is when the day comes the division occurs be prepared to physically take everything with you. Some cases are more contentious or people frankly are just immature and they can’t be left alone even though they’re adults.

When that’s the case it usually gets handled in one of two ways.

Either the attorneys for both sides will show up to keep the peace between the parties or some neutral person will be hired it could be a private fiduciary it could be some other kind of professional. Some kind of neutral will be hired to show up at the house to supervise the dividing of tangible personal property and again when that division is done, be prepared to take everything with you there is no second chance. I have on occasion had clients who have said, “gee we divided everything but I wasn’t able to take it all and then when I went back it was gone. Do not expect that you’re gonna have any recourse if that’s the situation. Once things are divided the trustee is always going to claim that the de comp came, you had your opportunity, these items were given to you or relief in a particular place for you and if you failed to collect them or somebody else came and got them before you did that’s no longer the trustees’ fault because they turn the property over to you. So the big lesson here no matter what is to go to the location and be prepared to take everything with you.

Now the parallel to this is the cases where we can’t get any cooperation to get this done the trustee just digs in and says I’m not going to allow any property to go out at any time.

You’re going to have a choice that you’ll need to make because if we have to go to court to set this process up it’s more time more money and more effort. It may be worth it to you it may not be worth it to you but that’s the decision you’ll need to make. If we’ve gotten to the end of things and the claim isn’t that the trustee won’t cooperate but rather the property is gone either the trustees stole, it’s missing for unexplained reasons but for whatever reason, the property’s not there you don’t even have the ability under any circumstances to get these things. It’s very very frustrating for people particularly when we’re dealing with items of sentimental value. I have heard repeatedly from clients that the family photographs, for example, they don’t have any financial value to anyone else but they were priceless to my client and now they’re gone. Well if that’s the case again you’ve got a difficult choice that needs to be made.

One option certainly is to claim that the trustee is still in possession and is hiding it and we can litigate that.

Again it’s gonna take time, therefore, it’s going to cost money and I guarantee you it’s going to require effort not just on our part but on yours. Many clients have said to us when they’ve reached that situation it’s simply not worth it, that the prize is not worth the price.

If you are ready to start your case, then please give us a call or fill out our Get Help Now form. A comprehensive overview of California Probate is available here. Should you have additional questions about trust litigation, you will find plenty of useful information in our Learning Center.