Petition to Determine Existence of Trust, California Probate Code Section 17200, Rough Draft by Mark J. Welch, California Estate Planning Attorney

Note: This sample petition and order is NOT guaranteed to work, and one attorney has advised that in Sacramento County, a petition like this one will not be permitted to go forward unless notice is given to the probate administrator (e.g., the trustee is required to open a probate proceeding and pay a second filing fee for that, just to get the court to hear the trust confirmation petition). < The "bracketed" codes in the text file are HTML codes and should be removed. >

Case No.

PETITION TO DETERMINE THE EXISTENCE OF A TRUST AND FOR INSTRUCTIONS (Probate Code Section 17200)

List of Terms to Search & Replace: Decedent_Name Date_of_Death Decedent_Residence_County Trust_Name Trust_Creation_Date Succ_Trustee_Name Admin_City Admin_County

Petitioner Succ_Trustee_Name declares:

1. Trust Creation. On Trust_Creation_Date, Decedent_Name executed an inter vivos trust known as "Trust_Name" (hereinafter "Trust"). As provided in Article ___, Paragraph ___, at page __, Decedent_Name was the settlor (trustor) and served as sole initial trustee. Petitioner is not aware of any amendments to this Trust. A true and correct copy of said trust instrument is attached to this petition as Exhibit 1.

2. Death of Settlor; Succession of Petitioner as Trustee. Subsequent to the creation of the Trust, Settlor and Trustee Decedent_Name died on Date_of_Death, a resident of Decedent_Residence_County, California. Upon Decedent_Name's death, the trust became irrevocable. See Article __, Paragraph __, at page ___. Upon Decedent_Name's death, Petitioner Succ_Trustee_Name became the successor trustee of the trust, as provided in Article __, Paragraph __, at page __. Petitioner has accepted the responsibilities and duties of Trustee.

3. Venue (Probate Code Sections 17002, 17005(a)(1)). Petitioner Succ_Trustee_Name is a resident of Admin_City, Admin_County, California, which is the usual place where the day-to-day activity of the Trust is carried on by Petitioner.

4. Record Title to Property Does Not Refer to Trust. At the date of death of Decedent_Name, record title to the certain property was in the name of Decedent_Name. A copy of _______________________ showing title vested in decedent's name alone, is attached as Exhibit 2. However, such property was actually owned by the Trust because the trust language at Article __, Paragraph __, page __, was sufficient to create a trust in the property. See Probate Code Section 15200(a); Estate of Heggstad (1993) 16 Cal. App. 4th 943, 20 Cal. Rptr. 2d 433.

Quote pertinent trust language

5. Decedent's Will Not Subject to Probate. A copy of decedent's will dated Trust_Creation_Date, the original of which has been lodged with the Clerk of the Court of Decedent_Residence_County Costa County, is attached as Exhibit 3. Said Will provides, at Article ___, Paragraph ___ (Page ___), that any of the decedent's property not held in the trust will ultimately pass into the trust at decedent's death, and thus would ultimately pass in the same manner as provided in the trust instrument. Further, Succ_Trustee_Name is also nominated as executor of decedent's will (at Article ___, paragraph ___, page ___), so that the same person would serve as fiduciary. Thus, there is no effect on inheritance rights whether or not the property is subjected to probate. As a practical matter, by granting this petition, the cost and delays of a probate are avoided as intended by the decedent.

6. List of Beneficiaries Under Will and Trust. The names of each of the beneficiaries named in Trust_Name and in decedent's Will, together with each person's relationship, age, and mailing addresses are listed in Exhibit 4. There are no other persons entitled to notice of this hearing.

7. No Unpaid Debts or Liens. There are ample funds in the trust to pay all just debts of the decedent, and Petitioner will pay such debts, as well as all expenses of trust administration and estate taxes, of out of the trust estate. The decedent did not receive any Medi-Cal benefits or other public benefits which are subject to reimbursement.

8. Goal of Petition. Petitioner seeks a Court order determining that Petitioner is the current trustee and that the Trust holds the following property:

List decedent's property, or refer to attached Schedule of Property from trust; be sure to include detailed legal descriptions, APN, and account numbers. Add factual allegations supporting trustee's claim that specific assets are part of the trust if the trust instrument did not include certain details, such as a legal description, APN, or account number. And consider including property which was validly transferred before death, just to be safe!

9. Declaration Under Penalty of Perjury. Petitioner declares that the foregoing is true and correct under penalty of perjury, and that this Declaration was executed on November 15, 1995 at Admin_City, California.

WHEREFORE, petitioners respectfully request the Court to order that:

1. The above-mentioned property is owned by, and is an asset of, Trust_Name.

2. Succ_Trustee_Name is the current Trustee of Trust_Name.

3. Such further orders as the Court deems proper.

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ORDER DETERMINING THE EXISTENCE OF A TRUST AND INSTRUCTING TRUSTEES

Succ_Trustee_Name, Successor Trustees of the Trust_Name dated Trust_Date, (hereinafter referred to as the "Trust"), having filed their petition to determine whether the Trust holds certain property and for instructions, and the same matter coming on regularly this day for hearing, the Court finds:

1. Notice of hearing of the petition has been given as required by law.

2. All of the allegations of the Petition are true.

3. Decedent_Name executed the Trust_Name on Trust_Creation_Date, and declared therein that Decedent_Name held certain property as trustee of said trust.

4. Decedent_Name died on Date_of_Death, a resident of Decedent_Residence_County, California.

5. Each of the following properties is owned by, and is an asset of, the Trust:

copy list from petition, or use attachment

IT IS ORDERED and adjudged that the above-mentioned property is owned by, and is an asset of, the Trust, and that Succ_Trustee_Name is the trustee of said Trust, who shall be entitled to manage, control, transfer, and dispose of such property.

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