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Gifting Question

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ltlhuzz

Junior Member
What is the name of your state (only U.S. law)? CA
My mother is executor of her father's estate. We are equal shares of that estate and each year she has gifted myself and my husband and herself and her husband the sum allowed by law. This year she claimed that my grandfather (who has dementia) agreed to only 2 gifting checks. My mother gave the checks to her and her husband (who is not part of the trust) and my question is, shouldn't one of the checks have gone to myself rather than her husband?
 


ltlhuzz

Junior Member
If he has dementia, how did he agree to anything?
Thats why I believe there are some shenanigans going on here. The attorney for the trust has already caught her transferring cash from his account to a joint account in her and my grandfathers name and told her to put the money back into his account.
 

tranquility

Senior Member
I don't quite understand what is happening here and, while many people write too much, this is an example of too little.
Still, as a general rule, executors don't gift anything.

Anything.
 

ltlhuzz

Junior Member
She also has POA, does that make a difference? It is a very long story and to explain it all would take a very long time. The jist of it is my grandfather did not like her husband and would never agree to gifting him. I feel that since he has dementia she is abusing her powers and I am wondering if I have any legal rights to have her checked out. The trust states that I should receive annual reports of the assets and I have not received one in (5) five years. I am afraid if I seek legal action against her she will try to take everything. She tried once to have her brothers share reduced to (1) one dollar but the attorney suggested against it because it would open the trust to be contested. I just don't trust her.
 

anteater

Senior Member
What Tranquility was saying is that your post tosses out so many terms that it is difficult to figure out what is going on. Let's try this:

Grandfather is alive, but no longer legally competent. Right?
Grandfather has a trust. Right?
-- If so, is it a revocable living trust? Or an irrevocable trust?
-- If so, who is the trustee?
Your mother is grandfather's agent under a Power of Attorney. Right?
Mother is making gifts from grandfather's trust using the power of attorney. Right?

(If grandfather is still alive, then your mother is not the executor.)
 
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ltlhuzz

Junior Member
What Tranquility was saying is that your post tosses out so many terms that it is difficult to figure out what is going on. Let's try this:

Grandfather is alive, but no longer legally competent. Right?
Grandfather has a trust. Right?
-- If so, is it a revocable living trust? Or an irrevocable trust?
-- If so, who is the trustee?
Your mother is grandfather's agent under a Power of Attorney. Right?
Mother is making gifts from grandfather's trust using the power of attorney. Rught?

(If grandfather is still alive, then your mother is not the executor.)
1. Yes
2. Yes, the trust is his and his wife's who passed in 2002
3. Revocable
4. This is where the trust gets a little confusing. Grandmother and granfather are trustors. I think when she passed he became the trustee. My mother had him committed shortly after my grandmothers passing and he was diagnosed with dementia. At this point I beleive she gained control of the trust.
 

seniorjudge

Senior Member
1. Yes
2. Yes, the trust is his and his wife's who passed in 2002
3. Revocable
4. This is where the trust gets a little confusing. Grandmother and granfather are trustors. I think when she passed he became the trustee. My mother had him committed shortly after my grandmothers passing and he was diagnosed with dementia. At this point I beleive she gained control of the trust.
And how did she gain control of the trust?
 

ltlhuzz

Junior Member
And how did she gain control of the trust?
Shortly after his stay in the hospital when he was first diagnosed with dementia, my mother had him sign some papers and I am assuming that is when she gained control. I am assuming by some of the replies (correct me if I'm wrong) that if she is able to gift and has control of his assets that he must have relinquished his rights as trustee making her trustee. One of the provisions relating to trustee in the trust reads as follows: A. If either my grandfather or my grandmother ceases to act as trustee, the other of them shall act as sole trustee. If either of them are unable or unwilling to act as trustee during their lifetimes, then my mother and me, individually, in that order, shall serve as sole successor trustee. Hope this answers some questions.

Thanks to everyone for all your help.
 

ltlhuzz

Junior Member
If you signed after he was diagnosed with dementia, the POA might be able to be challanged.
I had to take a leave from work after my grandmother passed in order to care for him. My employer requested some paperwork from his doctor and I still have a copy of the doctors report. It clearly states that he is diagnosed with dementia and it was well before he gave up POA.
 

tecate

Member
Looks like your mother is trying to do some estate tax planning by making gifts.

What happens if she gets mad at you?
 

anteater

Senior Member
To me, it sounds as if she is acting as the successor trustee rather than under the powers of the POA (although, I guess that the POA could also authorize her to engage in trust transactions).

Why don't you take the trust document to another attorney and ask that it be analyzed? She may have the power to make gifts at her discretion. However, her explanantion about grandfather "agreeing to only 2 checks" and her prior conduct certainly produces an odor.
 
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