How Do I Prevent A Trustee from Evicting Me from Trust Property?
Full Question:
Answer:
The answer will depend on all the circumstances, such as whether the husband left a will. If there was no will, the deceased is said to have died intestate and the assets will be distributed according to state intestacy laws. However, property belonging to a trust generally is not included as part of the estate and passes according to the terms of the trust, rather than through the probate process. If there is alleged to be a problem with the trust administration, it is possible to file a petition for an accounting or declaratory or injunctive relief. I suggest you contact a local attorney who can review all the facts and documents involved.
Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that
(1) the movant has a ‘strong’ likelihood of success on the merits;
(2) the movant would otherwise suffer irreparable injury;
(3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and
(4) the public interest would be served by issuance of a preliminary injunction.
A request for a declaratory judgment may be filed with the court, seeking to have a judicial declaration of the rights of parties involved. A petition for a declaratory judgment asks the court to define the legal relationship between the parties and their rights with respect to the matter before the court. It is used to determine the legal status of a situation, rather than the enforcement of the rights involved. For example, if ownership of the gun is in doubt, a request for a declaratory judgment on ownership might be requested.
Please see the following MD statutes:
§ 3-203 EST. & TRUSTS Elective share of surviving spouse.
(a) "Net estate" defined. — In this section,
"net estate" means the property of the decedent passing by
testate succession, without a deduction for State or federal
estate or inheritance taxes, and reduced by:
(1) Funeral and administration expenses;
(2) Family allowances; and
(3) Enforceable claims and debts against the estate.
(b) In general. — Instead of property left
to the surviving spouse by will, the surviving spouse may
elect to take a one-third share of the net estate if there is
also a surviving issue, or a one-half share of the net estate
if there is no surviving issue.
(c) Limitation. — The surviving spouse who
makes this election may not take more than a one-half share
of the net estate.
(d) Valuation. — For the purposes of this
section, the net estate and the property allocable to a share
of a surviving spouse shall be valued as of the date or dates
of distribution.
(e) Applicable share; adjustment. — (1) For
the purposes of this section, a surviving spouse who has
elected to take against a will shall be entitled to the
surviving spouse's portion of the income earned on the net
estate during the period of administration based on a
one-third or one-half share, whichever is applicable.
(2) If one or more distributions have been made to a
surviving spouse or another person that require an adjustment
in the relative interests of the beneficiaries, the
applicable share shall be adjusted.
§ 3-206 EST. & TRUSTS Time to exercise right of election of
surviving spouse; withdrawal of election.
(a) In general; extension. — (1) The election by a
surviving spouse to take an elective share shall be made
within the later of:
(i) Nine months after the date of the decedent's death; or
(ii) Six months after the first appointment of a personal
representative under a will.
(2) The court may extend the time for election, before its
expiration, for a period not to exceed three months at a
time, upon notice given to the personal representative and
for good cause shown.
(b) Withdrawal. — The surviving spouse may
withdraw the election at any time before the expiration of
the time for making the election to take an elective share.
§ 3-102 EST. & TRUSTS Distribution to surviving spouse.
(a) General. — The share of a surviving spouse shall be as
provided in this section.
(b) Surviving minor child. — If there is a surviving minor
child, the share shall be one-half.
(c) No surviving minor child, but surviving issue. — If there is
no surviving minor child, but there is surviving issue, the share shall
be the first $15,000 plus one-half of the residue.
(d) No surviving issue, but surviving parent. — If there is no
surviving issue but a surviving parent, the share shall be the first
$15,000 plus one-half of the residue.
(e) No surviving issue or parent. — If there is no surviving
issue or parent, the share shall be the whole estate.
(f) Calculation of net estate. — For the purposes of this
section, the net estate shall be calculated without a deduction for the
tax as defined in § 7-308 of the Tax-General Article.