What is the name of your state (only U.S. law)? Indiana law but I'm trying to help from TX
Dad always handled finances. Mom and dad had a Rev Liv Trust wherein both were trustors and trustees. Investments, house, cars, etc were (are) all held in the xyz and ghz revocable living trust, xya trustee, ghz named as trustees. Youngest child, one of three ultimate beneficiaries, is named successor trustee. The trust document provides for an AB trust. Trust was setup by a now deceased attorney. The assets of the atty's practice were acquired by a 'financial planning' firm. The folks had the trust reviewed periodically (most recently in Jan '10) by a rep from the planning firm that they thought was an atty. Not so; turns out he was an annuity salesman. In Jan this guy 'reviews trust and pronounces all is well. Dad dies this Sept. Shortly thereafter mom is hospitalized (unrelated). Due to circumstances and actions, mom decides youngest child (successor trustee after mom passes) was the wrong decision. Mom is feeling lost and calls for help.
I have some knowledge of finance but am very limited in my legal knowledge. Mom's finances are in good shape but the trust is largely a mystery. The guy form the 'financial planner' is called in to answer questions about the trust. That's when we learn he knows less than Mom and I about the trust.
We engage an elder law attorney. A 2 hour meeting was not helpful. First, he insisted in talking to me and ignoring Mom; second, he talked fast and mostly over my head. What we (I) learned was: (a) the rev trust became irrevocable when dad died; (b) mom needs to fund the "B" portion of the trust with dad's assets (even though all the assets were jointly held); (c) mom can not make any changes to the trust; (d) the trust document uses a lot of inapplicable 'boilerplate' that is not applicable to Indiana.
Questions:
[1] Is mom able to fund the "B" portion since before dad died there was nothing in only his name?
[2] If the "B" trust can be funded, suggestions would be appreciated as to which assets (bank accounts, investments, real estate, etc.) would be appropriate.
[3] Is the Revocable Trust now irrevocable, in whole or in part?
[4] The trust package (trust, pour-over wills, P of A's, etc) contains a durable PoA naming the youngest child concurrent with mom. Mom would like to change that PoA to a 'springing' PoA to be triggered if/when mom is unable to act in her own interest. Can she do that?
[5] The trust contains language that, when pieced together, suggests that the successor trustee will be able to operate with total freedom and will be accountable to no one. Mom wants to create a requirement that the trustee will have to furnish an accounting to the other two beneficiaries. The atty says that cannot be done. Is that correct?
[6] The trust contains an incontestability clause. The atty says that it is unenforceable in Indiana even though the trust contains language stating that the text of the trust will control in case of a conflict with Indiana law. Is that correct? Which is controlling, trust or state law?
Sorry to be so long winded. Mom knows she needs an atty that will work with her. Before hiring or meeting with the new person, she hopes to be better prepared so she can get the maximum benefit from their meeting(s).
Thanks for any and all input.What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?
Dad always handled finances. Mom and dad had a Rev Liv Trust wherein both were trustors and trustees. Investments, house, cars, etc were (are) all held in the xyz and ghz revocable living trust, xya trustee, ghz named as trustees. Youngest child, one of three ultimate beneficiaries, is named successor trustee. The trust document provides for an AB trust. Trust was setup by a now deceased attorney. The assets of the atty's practice were acquired by a 'financial planning' firm. The folks had the trust reviewed periodically (most recently in Jan '10) by a rep from the planning firm that they thought was an atty. Not so; turns out he was an annuity salesman. In Jan this guy 'reviews trust and pronounces all is well. Dad dies this Sept. Shortly thereafter mom is hospitalized (unrelated). Due to circumstances and actions, mom decides youngest child (successor trustee after mom passes) was the wrong decision. Mom is feeling lost and calls for help.
I have some knowledge of finance but am very limited in my legal knowledge. Mom's finances are in good shape but the trust is largely a mystery. The guy form the 'financial planner' is called in to answer questions about the trust. That's when we learn he knows less than Mom and I about the trust.
We engage an elder law attorney. A 2 hour meeting was not helpful. First, he insisted in talking to me and ignoring Mom; second, he talked fast and mostly over my head. What we (I) learned was: (a) the rev trust became irrevocable when dad died; (b) mom needs to fund the "B" portion of the trust with dad's assets (even though all the assets were jointly held); (c) mom can not make any changes to the trust; (d) the trust document uses a lot of inapplicable 'boilerplate' that is not applicable to Indiana.
Questions:
[1] Is mom able to fund the "B" portion since before dad died there was nothing in only his name?
[2] If the "B" trust can be funded, suggestions would be appreciated as to which assets (bank accounts, investments, real estate, etc.) would be appropriate.
[3] Is the Revocable Trust now irrevocable, in whole or in part?
[4] The trust package (trust, pour-over wills, P of A's, etc) contains a durable PoA naming the youngest child concurrent with mom. Mom would like to change that PoA to a 'springing' PoA to be triggered if/when mom is unable to act in her own interest. Can she do that?
[5] The trust contains language that, when pieced together, suggests that the successor trustee will be able to operate with total freedom and will be accountable to no one. Mom wants to create a requirement that the trustee will have to furnish an accounting to the other two beneficiaries. The atty says that cannot be done. Is that correct?
[6] The trust contains an incontestability clause. The atty says that it is unenforceable in Indiana even though the trust contains language stating that the text of the trust will control in case of a conflict with Indiana law. Is that correct? Which is controlling, trust or state law?
Sorry to be so long winded. Mom knows she needs an atty that will work with her. Before hiring or meeting with the new person, she hopes to be better prepared so she can get the maximum benefit from their meeting(s).
Thanks for any and all input.What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?