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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] A few things to consider... Posted by BigMike on August 16, 2006 at 10:10 AM In Reply to: I may have answered my own question.....! posted by Brian Lund on August 15, 2006 at 4:43 PM Here's a few things to consider. Yes, if you are successful in getting a judgement, you might be able to get some or all of the beneficial interest that a debtor. The beneficial interest is a personal property; not real property. Also, you have an interest, but you do not become the beneficiary or acquire of their rights. So that means, the beneficiary who may still have power of direction can simply chose to not make any distributions and as a result of your BeneInt, you will be getting a K-1 a the end of the tax year, but you hprobably will have $0 in your pocket. Moreover, you have now created a taxable event under IRS rev. rule 77-137. That means you get to pay taxes on the value of the beneficial interest (regardless of whether you have gotten any actual money). Of course, you can spent more time and money with your atty to attempt to set aside the trust or force a sale, etc, but likely this will drag on for years and meanwhile the Tax Man is demand his check. Bottomline, sure its possible, but are you really going to do that? Having been party to a couple of civil suits, no one (excpet maybe the plantiff) is in a hurry to settle these things and thus can take a long time to come to a conclusion. Usually, people get worn out by the process and settle out of court to end the madness : I read through CCP Section 709.010-709.030, and it seems as if this section provides the remedy. : Specifically CCP 709.020 which reads.... : "The judgment creditor may apply to the court on noticed : motion for an order applying to the satisfaction of a money judgment : a contingent remainder, executory interest, or other interest of the : judgment debtor in property that is not vested in the judgment : debtor. The interest of the judgment debtor may be applied to the : satisfaction of the money judgment by such means as the court, in its : discretion, determines are proper to protect the interests of both : the judgment debtor and judgment creditor, including but not limited : to the imposition of a lien on or the sale of the judgment debtor's : interest." : It does specify a noticed motion, which would make me think that you could not do it at the same time as the debtor's exam, becuase beneficial interest would not be established until you examined the trust paperowrk at that hearing. However I wonder if you are able to introduce the motion "ex parte" right at the time beneficial interest is established. : Anyone know that answer....? : Also, 709.010 (b) references making a petition to "a court having jurisdiciton over administration of the trust as prescribed in Part 5 of Division 9 of the Probate Code". : That part of the code seems to indicate that the Superior Court in the county that is the "principal place of administration of the trust", is the court having jurisdiction. And the principal place of administration of a trust in which an individual is trustee (or co-trustees) is their residence or normal place of business. : Am I getting this right? : Thanks, : -Brian Follow Ups: Re: A few things to consider... Brian Lund 10:29 AM, 08/16/06 (1) Re: A few things to consider... Travis-CA 10:50 PM, 08/16/06 (0) Post a Followup: Name : E-Mail : Subject : Comments: : Here's a few things to consider. Yes, if you are successful in getting a judgement, you might be able to get some or all of the beneficial interest that a debtor. The beneficial interest is a personal property; not real property. Also, you have an interest, but you do not become the beneficiary or acquire of their rights. So that means, the beneficiary who may still have power of direction can simply chose to not make any distributions and as a result of your BeneInt, you will be getting a K-1 a the end of the tax year, but you hprobably will have $0 in your pocket. Moreover, you have now created a taxable event under IRS rev. rule 77-137. That means you get to pay taxes on the value of the beneficial interest (regardless of whether you have gotten any actual money). Of course, you can spent more time and money with your atty to attempt to set aside the trust or force a sale, etc, but likely this will drag on for years and meanwhile the Tax Man is demand his check. Bottomline, sure its possible, but are you really going to do that? Having been party to a couple of civil suits, no one (excpet maybe the plantiff) is in a hurry to settle these things and thus can take a long time to come to a conclusion. Usually, people get worn out by the process and settle out of court to end the madness : : I read through CCP Section 709.010-709.030, and it seems as if this section provides the remedy. : : Specifically CCP 709.020 which reads.... : : "The judgment creditor may apply to the court on noticed : : motion for an order applying to the satisfaction of a money judgment : : a contingent remainder, executory interest, or other interest of the : : judgment debtor in property that is not vested in the judgment : : debtor. The interest of the judgment debtor may be applied to the : : satisfaction of the money judgment by such means as the court, in its : : discretion, determines are proper to protect the interests of both : : the judgment debtor and judgment creditor, including but not limited : : to the imposition of a lien on or the sale of the judgment debtor's : : interest." : : It does specify a noticed motion, which would make me think that you could not do it at the same time as the debtor's exam, becuase beneficial interest would not be established until you examined the trust paperowrk at that hearing. However I wonder if you are able to introduce the motion "ex parte" right at the time beneficial interest is established. : : Anyone know that answer....? : : Also, 709.010 (b) references making a petition to "a court having jurisdiciton over administration of the trust as prescribed in Part 5 of Division 9 of the Probate Code". : : That part of the code seems to indicate that the Superior Court in the county that is the "principal place of administration of the trust", is the court having jurisdiction. And the principal place of administration of a trust in which an individual is trustee (or co-trustees) is their residence or normal place of business. : : Am I getting this right? : : Thanks, : : -Brian Optional Link URL: Link Title: Optional Image URL: [ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] WWWAdmin 2.0a © 1997 Matt Wright and DBasics Software Company, All Rights Reserved

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