real estate trust

A Primer to Trustees and Beneficiaries in California (Prob. Code § 16000.)

Published on: March 27, 2024 | By Underwood Law Firm, P.C.

underwood-trustees-beneficiaries-300x300 A trust is a legal device that is commonly used in estate planning. A trust represents “a collection of assets and liabilities” that can be held and transferred by an individual to another individual, the “beneficiary.” (Portico Mgmt. Grp., LLC v. Harrison (2011) 202 Cal.App.4th 464, 473.) When the trustee, the person responsible for managing and distributing the trust’s assets, has a personal interest in those assets, certain problems can arise. This is because the trustee is bound by several legal duties designed to safeguard the interests of the beneficiaries. Therefore, if a trustee is also a beneficiary, they must make sure that they do not unduly favor themselves at the expense of the other beneficiaries.

What is a trustee?

A person who creates a trust, the “settlor,” names a “trustee” who holds legal title to the property held in the trust for the benefit of one or more persons, the “beneficiaries.” (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 521.) The settlor can create a voluntary or express trust through a formal agreement where the settlor details his intentions regarding the trustee and beneficiaries. A property owner can designate himself as a trustee, creating an express trust holding his property. (Probate Code § 15200(a).) The owner can also designate a third party as a trustee. A trust can be created during the settlor’s life, or, it can be created by a will where it becomes effective upon the settlor’s death.

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What is a Trust (Boshernitsan v. Bach (2021 61 Cal.App.5th 883)?

Published on: May 12, 2023 | By Underwood Law Firm, P.C.

5122023-300x300 “A trust is any arrangement which exists whereby property is transferred with an intention that it be held and administered by the transferee for the benefit of another.” (Higgins v. Higgins (2017) 11 Cal.App.5th 648, 662.) Essentially, a trust is a legal relationship that allows a person to hold property for the benefit of another person.

In a trust relationship, there are typically three main people involved: (1) the settlor; (2) the trustee; and (3) the beneficiary. The settlor is the person that creates the trust and transfers the property he/she owns in the trust to be held by the trustee. The trustee is the person that administers the trust. The trustee holds legal title to the property transferred into the trust by the settlor and acts as a fiduciary to the beneficiary to protect the assets in the trust. The beneficiary holds equitable title to the trust property and is the person that benefits from the property in the trust. In some cases, the settlor and the trustee are the same person.

In sum, a trust is a fiduciary relationship where property is transferred by one person to another on behalf of a third party. At the Underwood Law Firm, our attorneys are more than familiar with trusts and the requirements that follow.

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What are the steps to partition trust property?

Published on: April 28, 2023 | By Underwood Law Firm, P.C.

4282023-300x300 Partitions are lawsuits that split up the property between multiple co-owners so that each can take their equity out of the home. The prototypical partition is that between unmarried partners or business partners. Both own equal shares, but only one wants to end the relationship and take their money out. Partitions enable this to happen, usually ending with a court-ordered sale of the subject property.

The presence of a trust changes this calculus. This is because a trustee typically holds the property for the benefit of another. (Estate of Yool (2007) 151 Cal.App.4th 867, 874.) As such, pursuing a partition becomes much more difficult to do, especially because partitions cannot be used to disrupt the purpose and provisions of an express irrevocable trust.

At the Underwood Law Firm, our attorneys are well-versed in these matters and familiar with the intricacies of the interactions between property law and probate procedures. The following are steps that every litigant should keep in mind before pursuing the partition of a property subject to a trust.

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What Is a Real Estate Investment Trust (Corp. Code section 23000)?

Published on: March 22, 2023 | By Underwood Law Firm, P.C.

3222023-300x300 In California, a real estate investment trust is “any unincorporated association or trust formed to engage in business and managed by, or under the direction of, one or more trustees for the benefit of the holders or owners of transferable shares of beneficial interest in the trust estate and (1) that formed for the purpose of engaging in business as a real estate investment trust under the Federal Internal Revenue Code, (2) the sale of the shares of which has been qualified at any time by the Commissioner of Business Oversight pursuant to the Corporate Securities Law of 1968, and (3) that in good faith has commenced business as a real estate investment trust.” (Cal. Corp. Code § 23000(a)-(b).)

The Real Estate Investment Trust originated in 1960 with the Real Estate Investment Trust Act. Generally, the real estate investment trust allows individual investors to invest in large-scale commercial real estate projects. However, there are certain requirements that the law imposes for a real estate investment trust to be valid.

There are four different categories of requirements for a real estate investment trust imposed by the law; (1) organizational requirements; (2) asset requirements; (3) income requirements; and (4) distribution requirements. At the Underwood Law Firm, our attorneys are more than familiar with real estate investment trusts and the requirements that need to be fulfilled to have a real estate investment trust.

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