Judgment Recovery And Trusts

November 30, 2018


What if you learn that your judgment debtor is a beneficiary of their parent’s trust, and the parent died. Is there anything you can or need to do, besides levying on the trust through the probate trustee?

One of many judgment-related articles: I am not a lawyer, and this article is my opinion based on my experience, please consult with a lawyer if you need legal advice.

Most often, trusts are handled in probate courts. Trusts are usually not simple, and each state has their own laws concerning trusts. In California, there is probate code 15301, which reads:

(a) Except as provided in subdivision (b) and in Sections 15304 to 15307, inclusive, if the trust instrument provides that a beneficiary’s interest in principal is not subject to voluntary or involuntary transfer, the beneficiary’s interest in principal may not be transferred and is not subject to enforcement of a money judgment until paid to the beneficiary.

(b) After an amount of principal has become due and payable to the beneficiary under the trust instrument, upon petition to the court under Section 709.010 of the Code of Civil Procedure by a judgment creditor, the court may make an order directing the trustee to satisfy the money judgment out of that principal amount. The court in its discretion may issue an order directing the trustee to satisfy all or part of the judgment out of that principal amount.

However, before you attempt to levy your judgment debtor’s assets from a trust, you should determine whether the debtor’s beneficiary interest in the trust has vested (negating any spendthrift protections) as happened in the Castellano case in Illinois, see http://www.forbes.com/sites/jayadkisson/2014/08/11/trust-beneficiary-checkmated-by-bankruptcy-code-548e-in-castellano/, which can take a while to load.

Arguably, once the transfer to the beneficiary from the trust is actually made, then it ceases to be the trust’s property, and becomes that of the beneficiary.

Jurisdiction in probate court does not necessarily require a death. Probate courts handle all sorts of cases where nobody has died yet, such as the revision of existing trusts, or a beneficiary’s rights to the trust’s assets, etc.

Probate courts do not always have jurisdiction over inter vivos trusts, and testamentary trusts. For example, when a bunch of assets are put into an irrevocable educational trust for the kids, with the debtor’s elderly ailing father as the trustee, with a clause designating your judgment debtor as the successor trustee.

An attempt to unravel such a trust by proving fraud; would likely be litigated in a civil court rather than a probate court, because there is no issue of trust distribution involved. Fraudulent transfer cases are usually heard in the regular civil courts.


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