Trustee Powers and Powers of Power of Attorney

[Dandy Don]

I don't doubt that this attorney is honest and hardworking as you say he is. But you could benefit by getting a second objective opinion from another attorney just for your own satisfaction.

It is somewhat troubling that the first trust document was not signed. Be interesting to see what the attorney says about that, even though it is up to Bob to do so, attorney should have tried to confirm or make sure that it was signed.

Also, are you absolutely certain that the attorney was under no undue influence by other parties when other beneficiaries were added to the second trust or was that completely Bob's intent?

Also troubling is the terminology giving assets from the will to the "trustee". This is ambiguous confusing language--will it be your intent to distribute such property (although there may not be any if this pourover will language) according to the terms of the trust or will you interpret that to mean that you are the direct beneficiary of the property? The language should have been written to say that the TRUST would be the receiver of the property.

Get these concerns answered now or there could be potential legal problems when it comes time to administer the trust from the disgruntled relatives. They could try to argue that you were the one using undue influence to benefit from the trust, although they would lose without much evidence. In any case, if you don't want to consult a trust attorney now, when it comes time to administer the trust, it would be beneficial to have the consultation of a trust attorney then to handle any questions or situations you may not be familiar with for the best way about how to handle them.

DANDY DON IN OKLAHOMA ([email protected])

 

[Dandy Don]

Just ask the bank what their policies/procedures are about this. Most banks give access to the executor only, so it would be very easy for your sister to get a certified copy of her letters testamentary from the county courthouse to present to the bank. Some banks also allow a second party (from the bank or from the family) to view the safety deposit box opening to observe what the contents are.

DANDY DON IN OKLAHOMA ([email protected])

 

[Raya Tahan]

The Trust Documents Presumptively Reflect the Grantor's Intent

Hello Mike. The reply posted by "tranquility" is correct. As the successor trustee, you do technically "own" the trust property, but you do not own it in the same way that you normally own property, such as your own home and your own bank account funds, etc. Instead, you "own" the trust property on strict condition that you will distribute it exactly in accordance with the directives that the grantor (Bob is the "grantor") wrote in the trust documents. You "own" the ranch only because you have the legal power and the legal duty to deed the ranch (i.e. sign the deed) and other property to whoever the trust documents tell you to deed it to.

The default presumption, by law, is that trust documents do accurately reflect the intent of the grantor. It is a very difficult presumption to overcome. If somebody wants to challenge the trust documents by claiming the grantor was of unsound mind at the time he signed them, or that the grantor was being pressured by his sister-in-law, then you will have an uphill battle proving such a thing. For example, you will need statements from his doctors and other witnesses stating that he was of unsound mind five years ago, and that he would not have signed those trust documents had he been in a better mental state. Of course, his family members who are the beneficiaries under this trust will challenge you and will bring forth their own witnesses and evidence to prove that Bob knew what he was doing and therefore his trust should be distributed as written. You will have a tough battle ahead of you and might end up losing a lot of your own money on legal bills. If you feel uncomfortable distributing the trust assets as directed in the documents, your better choice might be simply to resign as the trustee, and let the successor trustee take over. Bob probably named a second-choice person as the "successor trustee".

Anyhow, good luck with your situation. I hope it works out well for you and Bob and Bob's family. Just FYI: My law firm's website has an online weekly newsletter on which we publish many articles and case briefs on these types of topics: http://www.tahanlaw.com/ArizonaProbate

I am only licensed to practice in Arizona (not California), so I should also include the disclaimer that Arizona follows the majority law that is applicable in most states, and I am not trying to represent you as your attorney.

Sincerely,
Raya Tahan
http://www.tahanlaw.com

As trustee, you are generally not going to be able to change the terms of the trust. The trust is the document which was signed and which property was titled to. As executor when he dies you will be required to follow the law and, if the will is valid, the will. (Which seems a pourover will--placing estate assets into the trust.)

If you are a power of attorney for him, you generally have the powers as limited by the POA document and by statute. Many states have statues which limit the powers in two ways. One in which the POA can't do and one in which the POA must ask court permission to do. I did not look up your state statutes, gifting things or changing heirs and/or beneficiaries is almost assuredly dealt with in the statutes or court cases. I find it unlikely you can do what you plan without permission from a court as you would need to amend or restate the trust and/or will. The change will almost certainly be challenged by the now-excluded relatives so you have to do it right.