Debtor Has a Living Trust - Can I Levy Its Assets

[robertsallen]

I have a judgment and Writ of Execution against a debtor in California.

It turns out, they have a trust, and that trust has many, many assets. How can I levy the trust's assets? Same way as a spousal affidavit? Or is it completely protected?

Thanks

[Mr. Knowitall]

A typical revocable living trust is under the compete control of the settlor, so if you're talking about such a trust then you should be able to pursue assets held in trust. If you're talking about other trusts, it depends on the trust.

[divemedic]

Trusts are odd, but I can tell you that a trust in Florida can be attacked.


From here:

Florida law prohibits creditors from attaching payments to a debtor from a trust where the trust agreement has a spendthrift clause. However, there is an exception when the trust was established by the debtor- a so-called "self-settled trust." Courts have held that a spendthrift clause does not protect a debtor’s right to payment from a trust established by the debtor even when the trust is primarily for the benefit of a charity. A second issue is whether a creditor can reverse a charitable trust as a fraudulent transfer to avoid or delay creditors. If a debtor makes a charitable bequest of non-exempt assets to keep the assets away from his creditors the bequest could be subject to fraudulent transfer claims. A creditor could argue the debtor intended to benefit from an income tax deduction from the charitable gift rather the lose the money to the judgment creditor with no tax deduction ( assuming the debtor could not deduct the loss to the creditor). The new bankruptcy law enacted in 2005 specifically prohibited fraudulent transfer claims against charitable gifts. The bankruptcy provision is not applicable in state court fraudulent transfer claims.