Petition for recission of distribution agreement
JUNE 1, 2026 Dept. 9 Probate Tentative Rulings
2. 25PR0197 IN THE MATTER OF DAVID J. GIOLITTI AND SHIRLEY A. GIOLITTI REVOCABLE TRUST DATED APRIL 4, 2016 PETITION FOR RECISSION OF DISTRIBUTION AGREEMENT
Petitioner and his two brothers are the beneficiaries of decedent’s irrevocable Trust. Petitioner is the step-son of decedent. Respondent Donald Giolitti and decedent Shirley Giolitti were the settlors of the subject trust (“Trust”). When Shirley Giolitti died in 2020, the Trust was divided into a Decedent’s Trust and a Survivor’s Trust, with Respondent as Trustee. The real property in Camino, CA (the ‘Residence”) that is at issue in this case was allocated to the Survivor’s Trust, in accordance with the language of the Trust allowed the property to be allocated to either the Survivor’s or Decedent’s Trust if the surviving spouse, Respondent, required the use of the Residence. Petitioner alleges that Respondent in fact did not use the Residence but sold it in 2022. Petition, Exhibit B. The proceeds were distributed between the two Trusts. Petition, Exhibit E.
On October 7, 2022, in order to resolve a dispute, Respondent and the children of decedent entered into the Distribution Agreement which purported to terminate the Decedent’s Trust. Petition, Exhibit C.
The Petition requests the Court to terminate a Distribution Agreement entered into by the beneficiaries. See Exhibit C to the Petition. The Petition further requests the Court to reinstate the Trust that was terminated by the Distribution Agreement and redistribute the estate in accordance with the trust, which would require one of the distributees to make payment reflecting the change to the other distributee.
Petitioner argues that the Distribution Agreement terminated the trust without Court Order per Probate Code § 15403(a): “[I]f all beneficiaries of an irrevocable trust consent, they may petition the court for modification or termination of the trust.”
Petitioner notes that he is not in possession of the complete Trust documents and the Trust is not on file with the Court.
The Court agrees that the beneficiaries do not have the power to terminate or modify an irrevocable trust by mutual agreement without a judicial Order. Probate Code § 15403
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JUNE 1, 2026 Dept. 9 Probate Tentative Rulings
Pursuant to §21310. et seq. of the California Probate Code in the event any beneficiary under the above referenced ‘Trust Agreement shall singularly or in conjunction with any other person or persons undertake any of the following actions then the right of that person to take any interest given him or her by said Trust Agreement shall be determined as if would have been determined had the person predeceased us without being survived by issue:
(1) Contests in any court the validity of this Amendment: (2) Seeks to obtain adjudication in any proceeding in any court that this Amendment, any of its provisions. are void. except to the extent permitted by §20380 of the California Probate Code: and/or. (3) Seeks otherwise to set aside Us Amendment.
If California law governs the foregoing provisions of (his Paragraph. then California Probate Code §21311 shall apply and the foregoing provisions of this Paragraph may only be enforced against the following types of contests:
(1) a direct contest that is brought without probable cause: (2) a pleading to challenge a transfer of property on the grounds that it was not the transferor’s property at the time of the transfer: and/or, (3) filing of a creditor's claim or prosecution of an action based on it
The terms “direct contest” and “pleading” have the same meanings as set forth in California Probate Code $21310. All trusts created in this Amendment and/or in said Trust Agreement are “protected instruments” as provided in California Probate Code §21310(e) 4. Except for the changes hereinabove set (forth, the provisions of said Trust Agreement dated April 4. 2016. shall be. and the same are hereby ratified and confirmed. (April 16, 2019 Amendment page 4-5) The court therefore intends to grant the petition.
TENTATIVE RULING #2: ABSENT OBJECTION THE PETITION IS GRANTED AS REQUESTED. ANY PERSON WHO HAS AN OBJECTION MAY MAKE IT ANY TIME, EVEN ORALLY AT THE HEARING (PROBATE CODE § 1043). IF A PARTY OR PARTIES WISH TO APPEAR REMOTELY, INSTRUCTIONS FOR REMOTE APPEARANCES CAN BE FOUND ON THE COURT’S WEBSITE.
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