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Amendment made a mess of Trust. What to do?

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whammo77

Junior Member
Why? How will his input change anything?

Heck, the only reason I would try to find the attorney is to know where he is in case the facts lead to a malpractice claim.
Without going too deeply into the deception I have seen from my sister over the past humpteen years..... The original attny should have copies of all of the original documents (so I can validate the amendment). And it is very possible he has a copy of something that I DONT have, or is in posession of some document which may somehow help to clarify some of this mess. So to me, since the amendment has been taken apart and then stapled back together, it is a prudent step; especially considering that my sister has already tried to hide documents, swap documents, etc etc.

There could even be another amendment which recends the first amendment, etc etc. And it is not at all beyond my sister to hide, destroy or conceal those documents from me, especially if they are not in her favor....

Considering all that has happened thus far, I think a person would be a fool NOT to track him down**************.
 


curb1

Senior Member
I agree. If anything turns up, it will be a positive. There is no downside in making the effort. It is certainly not unusual for a trustee to go back to the attorney who drafted the trust for information/help. I think it is worth the effort to get the perspective from the attorney about the amendment. The effort may, or may not, be fruitful, but you never know.
 

tranquility

Senior Member
Without going too deeply into the deception I have seen from my sister over the past humpteen years..... The original attny should have copies of all of the original documents (so I can validate the amendment). And it is very possible he has a copy of something that I DONT have, or is in posession of some document which may somehow help to clarify some of this mess. So to me, since the amendment has been taken apart and then stapled back together, it is a prudent step; especially considering that my sister has already tried to hide documents, swap documents, etc etc.

There could even be another amendment which recends the first amendment, etc etc. And it is not at all beyond my sister to hide, destroy or conceal those documents from me, especially if they are not in her favor....

Considering all that has happened thus far, I think a person would be a fool NOT to track him down**************.
Sigh. And, then what? How does your situation change? Pretend the attorney has a second amendment, but you have this trust in your hands right here. What do you do then?

You are spinning your wheels. Get an attorney, start litigation. Discover things from the attorney officially.

Info edit:
The key reason for my advice is that THIS IS GOING TO LITIGATION. There is nothing that will be informally discovered that will change that. Nor will a casual discovery lead to admissible evidence. Get an attorney and start officially working towards resolution.
 
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whammo77

Junior Member
Sigh. And, then what? How does your situation change? Pretend the attorney has a second amendment, but you have this trust in your hands right here. What do you do then?

You are spinning your wheels. Get an attorney, start litigation. Discover things from the attorney officially.

Info edit:
The key reason for my advice is that THIS IS GOING TO LITIGATION. There is nothing that will be informally discovered that will change that. Nor will a casual discovery lead to admissible evidence. Get an attorney and start officially working towards resolution.
As the trustee, I am supposed to be privvy to all documentation. Therefore, any documents he has he should share with me, but he will never give me his original. Should there be a need to pursue this further, then whatever attny I get can request a formal set of documents from him. Likewise, he has handled this estate since back in the 80's. So his knowledge about all of this could be invaluable. Or then, it could just be a waste.

I just don't see it at all being prudent to jump head long into litigation BEFORE exhausting all other avenues.

And depending on what he does or doesn't have, my situation may not change at all. But it's certainly cheaper for me to discuss the issue with him than to hire an attny to talk to him. And if there were another amendment that struck the first one, OR if my sis has cleverly made changes to the amendment, I can find that all out for myself without paying twice the price for it. Just because I have the money available to get an attny and start throwing documents around, doesn't mean I should pursue this wrecklessly. It all goes back to the hare and the tortoise**************
 

tranquility

Senior Member
Nope, you're wrong. But, knock yourself out. Later, when one or the other side sues you personally for not defending the trust but for favoring certain beneficiaries (aka fiduciary breech), let me know how it feels when your "diligence" is used to help prove it up. You'll say it was to save money. The other side will say it was to benefit a certain class of beneficiary over the other(s). Then, when it is brought up that NOTHING you find will make ANY difference in how the course will go....the motivation will seem clear. (Even if it is not.)
 

curb1

Senior Member
We have a disagreement. I think it is imperative that the OP get as much information as possible. Tranquility thinks lack of information is advantageous. It will do no harm for whammo77 to check this out. Why let an attorney charge $200 (or more) an hour to do basic research. A trustee should do something, if they are able, rather than just running up legal costs. This search may, or may, not turn up anything, but it will do zero harm to check.

Whammo77, have you seen the original? If the attorney has the original it should be readily available for you. The law firm could have it for you. Your mother should have had the original unless the law firm kept it for her in their vault. It should be yours to have at this time.
 

whammo77

Junior Member
We have a disagreement. I think it is imperative that the OP get as much information as possible. Tranquility thinks lack of information is advantageous. It will do no harm for whammo77 to check this out. Why let an attorney charge $200 (or more) an hour to do basic research. A trustee should do something, if they are able, rather than just running up legal costs. This search may, or may, not turn up anything, but it will do zero harm to check.

Whammo77, have you seen the original? If the attorney has the original it should be readily available for you. The law firm could have it for you. Your mother should have had the original unless the law firm kept it for her in their vault. It should be yours to have at this time.
I tend to agree with you on your position. The trust specifically directs me to seek out consultation and/or legal advice if I have any questions regarding it's intent. I have more questions than answers, so I am doing what it says for me to do....

I DO posess the original Trust documents, not a copy, and what I BELIEVE to be the Original amendment, and not a copy (although I find it a little suspect given the circumstances since it has been taken apart and then stapled back together). If there is any other paperwork that exists AFTER the amendment, I am unaware of it and do not have copies OR originals. This is another reason I want to talk to the original attny that handled all of this.
 

curb1

Senior Member
One other thing in your search. When I went to the attorney who authored our trust (and was our attorney for about 20 years) I asked him for our complete file. No problem, he gave me everything in our file. It was interesting.
 

tranquility

Senior Member
We have a disagreement. I think it is imperative that the OP get as much information as possible. Tranquility thinks lack of information is advantageous. It will do no harm for whammo77 to check this out. Why let an attorney charge $200 (or more) an hour to do basic research. A trustee should do something, if they are able, rather than just running up legal costs. This search may, or may, not turn up anything, but it will do zero harm to check.

Whammo77, have you seen the original? If the attorney has the original it should be readily available for you. The law firm could have it for you. Your mother should have had the original unless the law firm kept it for her in their vault. It should be yours to have at this time.
Um, no. It's not that a lack of information is advantageous, it's that we already have enough information to know the trust is FUBAR and there will be litigation over it. Everything from this point forward must be treated carefully and an attorney needs to be brought on board to make sure it is all done right. Continuing to attempt to do basic research that means nothing to the fact the trust will be litigated, makes it look like the trustee is trying to avoid the clear meaning of the amendment. That puts him at personal risk as I suspect he is closer to the other beneficiaries than the sister. The choice the OP wants to make is pretty clear. The more he does, informally, to prevent that is clear evidence he is benefiting one beneficiary over the other. Is that OK? Sure, probably. But, it IS evidence and it WILL affect the fact finder's opinion of his actions.

Since there is NO information that will take this out of litigation (as we have purportedly conflicting clauses in the trust), what is the point? You may be comfortable in the OP risking personal liability for fiduciary breach, but I've seen how this rolls down the road many times. There's going to be some deal. Everyone is going to get in a room (Or their attorneys.) and are going to make a deal on what to do or the legal fees of all are going to be exorbitant. This litigation is going to be a bear. What possible reason would the OP want to take on personal risk when he could just take the trust's funds and clarify it with the court? Fiduciary breaches can be subtle and anyone who is a fiduciary with any regularity are meticulous about getting legal advice before doing anything. That's because they've seen the world and know what it's like to stand between a person a free money.
 

curb1

Senior Member
No one is suggesting that legal advice should not be obtained. No one is suggesting that the courts will not be involved. Getting available information is a prudent endeavor for a trustee.

1) You said, "Continuing to attempt to do basic research that means nothing to the fact the trust will be litigated, makes it look like the trustee is trying to avoid the clear meaning of the amendment". No it doesn't.

2) You said, "That puts him at personal risk as I suspect he is closer to the other beneficiaries than the sister". It does not put him at risk in any way. Your suspicions don't count.

3) You said, "The choice the OP wants to make is pretty clear. The more he does, informally, to prevent that is clear evidence he is benefiting one beneficiary over the other". The OP is searching for information pertinent to the trust. That is an appropriate duty of the trustee.

4) You said, "What possible reason would the OP want to take on personal risk when he could just take the trust's funds and clarify it with the court?" The OP is not "taking on personal risk" by getting more information.

5) You asked, "The more he does, informally, to prevent that is clear evidence he is benefiting one beneficiary over the other. Is that OK?" No, it is not clear evidence that he is benefiting one beneficiary over the other.
 

whammo77

Junior Member
Such a mess, even when you follow the rules given to you, lawyers can turn it into a bad thing lol.

Anyway..... THE FOLLOWING IS A FICTIONAL SCENARIO. NOTHING ABOUT IT IS REAL. IT IS HYPOTHETICAL. H-Y-P-O-T-H-E-T-I-C-A-L!!!!
These are some of the types of scenarios I am dealing with:


Section 5.00
In the back yard there is a barn. Inside this barn is a small shed I was converting into a playhouse for my grand child Betsy. Give the play house to Betsy. The barn is to be sold and 3/4 of the proceeds to go back into the tust bank account and the other 1/4 of the proceeds go to Uncle Fred.

Section 5.01
Hire a moving company and deliver the playhouse to Betsy's address at 123 Park Avenue. Go to Lowes and buy the necessary hardware, blocks, wire, tie-downs, and all other things needed to properly setup Betsy's playhouse. Use the funds placed in the trust account from the sale of the barn to pay for this.

Section 5.02
After Betsy's play house is delivered and set up, hire a concrete contractor to pour a slab in front of the playhouse and erect a basketball goal. Also hire a professional painter to paint hop-skotch squares on the slab for betty. Color of the squares is to be Betsy's favorite color: Purple. Use the funds placed in the trust account from the sale of the barn to pay for this.

Section 5.03
Take the window air conditioning unit from my garage, model ABC123. Install it in Betsy's playhouse so she can play in there in the summer. Hire an electrician to run power from the meter to Betsy's playhouse. Use the funds placed in the trust account from the sale of the barn to pay for this.



THEN COMES THE AMENDMENT:

Replace original section 5.00 with new section 5.00 as follows:

Section 5.00
Give the barn and it's contents to Cousin Sam.

This Trust agreement dated XXXXX shall in all repsects, except as amended herein, remain in full force and effect...... etc etc


SO WHAT ABOUT BETSY??? THEY DIDN'T DELETE ALL HER OTHER STUFF. IT SAYS I AM STILL SUPPOSED TO DO ALL THAT...... BUT THE BARN WAS GIVEN TO SOMEONE INSTEAD OF BEING SOLD?????
 
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whammo77

Junior Member
AND HERE IS ANOTHER HYPOTHETICAL SITUATION:

SECTION 12
I have two brand new Mazarrati's. Those are to be sold and 3/4 of the proceeds given to little Timmy, and 1/4 given to Betsy, as follows.

SECTION 13
Make an account for little Timmy, who is in a long term care facility. This will be account #1. Put 3/4 OF the funds into the account #1, and distribute them at a rate of XXXX per month until the funds are gone.

SECTION 14
Make an account for Betsy. This will be account #2. Put 1/4 of the funds into the account #2, and distribute them at a rate of XXXX per month until the funds are gone.

SECTION 15
If little Timmy dies before Betsy and funds are still in account #1, then the remainder of those funds are to be put into account #2 for Betsy. If Betsy dies before Timmy then any remaining funds in account #2 will be transferred to account #1 for Timmy.

SECTION 16
If both Betsy and Timmy pass away and funds are still remaining in accounts #1 and/or #2, then give the remainder of the funds to cousin Tom.

(OK, Y'ALL GET THE POINT**************)

As per the amendment:

SECTION 12
Give one Mazarrati to Aunt Sue and one Mazzarati to 2nd cousin Earl.

This Trust agreement dated XXXXX shall in all repsects, except as amended herein, remain in full force and effect...... etc etc



OK, AGAIN, THEY ONLY REPLACED ONE SECTION AND LEFT EVERYTHING ELSE IN TACT, SO ARE LITLLE TIMMY AND BETSY JUST UP A CREEK???
 
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whammo77

Junior Member
AND ONE MORE HYPOTHETICAL SITUATION:

Section 3:
Take my two rent houses, give the one on ABC street to Tom and the one on 123 street to Earl.



Section 27:
Thelma Lou stole my husband, my best mule, my rhinestone saddle worth $1500, ran off with my children, and tried to have me committed to a crazy house. All this considered, the mule and my saddle shall be considered as Thelma Lou's inheritance. In no case shall Thelma Lou be allowed anything further under the terms of this trust.



But per the Amendment:

Replace section 3 with the following section 3:

SECTION 3

Give Thelma Lou the house on ABC Street and Tom the house on 123 street.

This Trust agreement dated XXXXX shall in all repsects, except as amended herein, remain in full force and effect...... etc etc blah blah blah



IT CREATES A LOOP. SECTION 3 GOT CHANGED TO GIVE HER A HOUSE, BUT SECTION 27 FORBIDS HER TO HAVE ANYTHING AND WAS NOT REPLACED, AND PER THE AMENDMENT, EVERYTHING ELSE PER THE ORIGINAL TRUST IS TO REMAIN IN FULL FORCE AND EFFECT WHICH MEANS SECTION 27 IS STILL BINDING. Right?????

WHAT A HEADACHE.


*****ALL NAMES, SECTION NUMBERS AND SCENARIOS ARE PURELY MADE UP. NONE OF THE AFOREMENTIONED IS REAL. IT IS ALL MADE UP PURELY FOR SPECULATIVE REASONS.
 
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whammo77

Junior Member
Oh, and I have an appt scheduled with an independent attny next week. This should be interesting.

This freaking amendment is giving me a headache......
 

ecmst12

Senior Member
I would suggest that you preserve your sanity by putting the stupid thing AWAY until your meeting with the lawyer. Nothing you can do about it before then anyway.
 

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