What is the name of your state (only U.S. law)? California
My father died in November of last year his trust states the following:
6.1. SPECIFIC DISTRIBUTIONS. Settlors, at their option, may prepare a Schedule B to this Trust to designate the disposition of certain items of the Trust Estate as specific distributions. Trustee shall comply with the bequests made in Schedule B. Schedule B shall be dated and signed by Settlors and may be amended at any time by Settlors during their joint lifetimes; Schedule B may be prepared and amended at any time by the surviving Settlor with respect to any such property allocated to the Survivor's Trust. An amendment shall not be effective unless properly executed and delivered to the Trustee. Except as expressly provided therein, distributions pursuant to Schedule B shall lapse as to any and all persons who predecease the donative Settlor(s) making the disposition. Upon the Deceased Spouse's death, Trustee shall distribute the Deceased Spouse's interest in any such property as provided on Schedule B. If Schedule B fails to designate a distribution of any such property on the death of the Deceased Spouse, all such property shall be allocated to the Bypass Trust as provided above.
Schedule B states the following:
Specific Bequests
1. Description of Bequest: On the death of XXX Settlor, YYY shall have the right to select and receive outright and free of trust one (1) car of her choosing (regardless of whether such car is XXX's separate property or whether such car is community property) provided that she is then¬ living.
2. The remainder of the cars (whether separate or community property) shall be distributed to XXX's children, or their survivor.
Unfortunately, the trust attorney says he failed to notice the Schedule B when giving advice to my stepmother and instructed her to sell all of the cars to use the money to support the household, which I feel is in direct violation of the trust. When pressed on the issue, the lawyer has admitted his mistake and originally stated that the funds would be distributed to us into the Bypass Trust. At that time we didn’t have a copy of the trust and didn’t question him. When we were finally provided with a copy of the trust and saw how it was laid out, we questioned the distribution. He then stated (in writing) that he had made a mistake and that the funds wouldn't go through the bypass, they would in fact be distributed to us once the principle residence is sold.
This didn't sit well with me so I called the attorney and questioned him about my rights to that money. Once pressed, he told me I could request it at any time, which I did 10 days ago. He finally sent me copies of the bills of sale, but instructed me this morning that I can't have the money from the cars because of potential debts in the estate (mortgage payment, possible taxes, etc.) and that I would have to wait for the money due to these issues. My stepmother received some life insurance money (not a lot, mind you, but enough to pay the mortgage and other household bills for a few months) along with some IRA's that could be accessed, if needed. The only debts the estate has are two mortgage payments on the principle residence and a rental mortgage payment that is covered by the rent of the property. Is this lawyer correct in stating that I don't have a right to the proceeds from the car and that my stepmother have use to this money?
Thanks,
David
My father died in November of last year his trust states the following:
6.1. SPECIFIC DISTRIBUTIONS. Settlors, at their option, may prepare a Schedule B to this Trust to designate the disposition of certain items of the Trust Estate as specific distributions. Trustee shall comply with the bequests made in Schedule B. Schedule B shall be dated and signed by Settlors and may be amended at any time by Settlors during their joint lifetimes; Schedule B may be prepared and amended at any time by the surviving Settlor with respect to any such property allocated to the Survivor's Trust. An amendment shall not be effective unless properly executed and delivered to the Trustee. Except as expressly provided therein, distributions pursuant to Schedule B shall lapse as to any and all persons who predecease the donative Settlor(s) making the disposition. Upon the Deceased Spouse's death, Trustee shall distribute the Deceased Spouse's interest in any such property as provided on Schedule B. If Schedule B fails to designate a distribution of any such property on the death of the Deceased Spouse, all such property shall be allocated to the Bypass Trust as provided above.
Schedule B states the following:
Specific Bequests
1. Description of Bequest: On the death of XXX Settlor, YYY shall have the right to select and receive outright and free of trust one (1) car of her choosing (regardless of whether such car is XXX's separate property or whether such car is community property) provided that she is then¬ living.
2. The remainder of the cars (whether separate or community property) shall be distributed to XXX's children, or their survivor.
Unfortunately, the trust attorney says he failed to notice the Schedule B when giving advice to my stepmother and instructed her to sell all of the cars to use the money to support the household, which I feel is in direct violation of the trust. When pressed on the issue, the lawyer has admitted his mistake and originally stated that the funds would be distributed to us into the Bypass Trust. At that time we didn’t have a copy of the trust and didn’t question him. When we were finally provided with a copy of the trust and saw how it was laid out, we questioned the distribution. He then stated (in writing) that he had made a mistake and that the funds wouldn't go through the bypass, they would in fact be distributed to us once the principle residence is sold.
This didn't sit well with me so I called the attorney and questioned him about my rights to that money. Once pressed, he told me I could request it at any time, which I did 10 days ago. He finally sent me copies of the bills of sale, but instructed me this morning that I can't have the money from the cars because of potential debts in the estate (mortgage payment, possible taxes, etc.) and that I would have to wait for the money due to these issues. My stepmother received some life insurance money (not a lot, mind you, but enough to pay the mortgage and other household bills for a few months) along with some IRA's that could be accessed, if needed. The only debts the estate has are two mortgage payments on the principle residence and a rental mortgage payment that is covered by the rent of the property. Is this lawyer correct in stating that I don't have a right to the proceeds from the car and that my stepmother have use to this money?
Thanks,
David