Divorce and Trust Litigation

At the Orange County Law office of David P Schwarz we have numerous years of practicing trust law in Divorce litigation. Please contact our office at 949 735 9266 or via the web. We can also be reached by email at dpslaw66@gmail.com.

A Divorce lawyer will assist their Divorce client in creating a trust to put their assets in. A trust is a fiduciary relationship with respect to property, not a person or entity separate from its trustees or beneficiaries. It “is simply a collection of assets and liabilities.” Legal title to trust property is held by the trustee. 

However, not all relationships called “trusts” are trusts as defined in and governed by the Probate Code (Prob.C. § 82). “While the dictionary definition of the word ‘trust’ may be clear, its meaning under the Probate Code is not. For example, a number of entities which bear the name ‘trusts’ are, in fact, expressly excluded from the definition of ‘trust’ under the Probate Code. Among the ‘trusts’ that are not ‘trusts’ pursuant to [Prob.C. § 82(b)] are: constructive trusts … , business trusts … , investment trusts … , common trust funds … , voting trusts … , and liquidation trusts … Consequently, simply because something is referred to as a ‘trust’ or as a ‘trust fund,’ even if that reference appears as part of the California Constitution, does not mean that entity or relationship is necessarily subject to the trust law provisions of the Probate Code.

“inter vivos trust”

A Divorce Lawyer will assist you in creating an Inter vivos trust which is a trust that is funded during your lifetime. An “inter vivos” is called a “living” trust and is a trust established during the lifetime of the trustor. The most common inter vivos trust is a revocable trust, to which the grantor transfers all, or substantially all, of his or her property for lifetime management.

At the Orange County Law Office of David P Schwarz we will assist you as well to determine if a trust is needed that occurs after a spouse dies. A  testamentary trust is created by a will or codicil. And the trust does not come into existence until the will or codicil has been admitted to probate and the court has decreed the trust's establishment (and, if necessary, its interpretation). Of necessity, therefore, such a trust may only be funded through the probate process … by the court's ordering the transfer of assets into the trust during or upon conclusion of probate administration.

A Divorce lawyer will also help you determine if another option can be used in lieu of a will when a spouse dies. A “pour-over” testamentary trust under Prob.C. §§ 6320-6330 may be “poured” directly into a testamentary trust without the necessity for probate if the assets would not normally be subject to probate administration—e.g., insurance policy proceeds, where the designated beneficiary is the duly-appointed and acting trustee under the decedent-insured's will.

At the Law offices of David P Schwarz we can make sure that you are informed of making the right decisions regarding creating a trust during the divorce proceedings in Orange County. Please contact our office at 949 735 9266 or via the web. We can also be reached by email at dpslaw66@gmail.com.

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