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Trust will say what can happen to house after partner’s death

Dear Benny: My partner died and he had put the house in a trust. I have lived in the house for 24 years and paid the mortgages for two years after he died.

The trustee hates me, and he is in France most months. I am the sole beneficiary of my partner’s will, which includes everything.

How can I get this through probate? Can I fire the trustee?

The decedent also owes $30,000 in credit card bills. The trustee does not even return my phone calls. –Paul

Dear Paul: The laws differ from state to state. However, if the real property is in a trust, then its disposition is governed by the terms and conditions contained in that document.

You say that you were the beneficiary of the will. Are you also the beneficiary of the trust? That will be an important factor that the probate court will be considering when making its decision.

Bottom line: You need to obtain a copy of the trust agreement to determine what your rights are and to see what can be done to either enforce your rights with the current trustee or to have that trustee removed.

If those provisions are not contained in the trust document (they should be if it was prepared properly) your state law will dictate. You can also file to probate the estate if there are any probate assets.

As mentioned earlier, there is a distinction between a will and a trust. Currently, the property is probably outside of the decedent’s estate, which is one reason why people create trusts.

However, when someone owns a revocable trust, the will simply “pours over” the probate assets into the trust. This is highly complex and you should get a lawyer who understands probate and trust law.

Dear Benny: We bought a foreclosed house in 1995 in which the garage had been converted to an illegal family room.

At closing, we had up to 60 days to have the garage brought up to code either by putting it back to a garage or making it a legal family room.

We changed it back to a garage in 30 days. We got all the proper permits and a new certificate of occupancy to give to the town. We did everything right.

Well, 16 years later, I am on a website for our county and find out that they have us down for the extra 550 square feet of living space that we had taken off.

I called the town and was told they will come out to measure. The tax assessor then told us that we cannot get back taxes that we paid. However, he did say that we were charged for the extra 550 square feet plus a basement that I do not have — we have a crawlspace — for all this time.

Do we have any legal rights? –Name withheld on request

Dear nameless: Let me address this in two parts.

First, the future. I strongly suggest you take immediate steps to at least have the assessor’s records changed as soon as possible. If the assessor’s records are incorrect, they must be corrected.

Second, the past. It is often very difficult to get refunds from local or state governments. They are often extremely bureaucratic and, because their funds are low, are reluctant to part with a single dollar.

You should, however, talk with a local attorney. You may have the right to challenge the assessor and get a refund.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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