Extend the trust?

[JimPeters]

AZ

I added this question to an old thread, which may be why it was neglected:

I wrote an amendment to my living trust which instructs the successor trustee to delay sale of my residence for a year following my death to allow my daughter to live there for that time. The trust, as it was set up, would end with my death and assets allocated to the beneficiaries.

Does my amendment contradict this? Would the trust need to be set up to continue to exist somehow after my death in order for the amendment to be viable?

 

[TrustUser]

i can see a problem with that.

is there a way to amend the trust so that it is not set up to end ?

you are beginning to add a lot of wrinkles. i know you dont want to, but i am beginning to think that you should REALLY, REALLY do a new trust, with everything just the way you want it to be.

it is just beginning to look like a possible can of worms. amendments cause problems, especially when they involve the beneficiaries.

 

[TrustUser]

also make sure that the date of the trust is included in the grantee description.

jim peters hereby grants to john jones, trustee, or his successors in trust, under the jim peters living trust, notarized on july 18, 2008.

i actually use the word "notarized" instead of "dated", because documents can have document dates on it that are the same, but it is unlikely that you will have 2 trusts that are both notarized on the same day.

this is just to make sure that there is no discrepancy in the deed as to which trust document is being referred to.

and since you may have multiple trust documents, it is especially important for you, if you do another trust.

 

[JimPeters]

... i can see a problem with that.

is there a way to amend the trust so that it is not set up to end ?
...QUOTE]

I'd like to know the answer to that. People have no way of understanding that in my condition it is all I can do to ask these questions and type out a couple of amendments, so a new trust is not feasible.

Is it possible that giving use of the house to my daughter for a year does not require the trust to continue? Or that it effectively continues the trust for this purpose?

 

[tranquility]

Blind leading the blind. Much litigation can be had on a single sentence. Believe me, I know. Hard things are hard. See the experts or invite litigation.

 

[TrustUser]

jim,

one of the main reasons for a trust is to avoid the clutches of lawyers and the probate system.

what you are doing right now is simply entering a very gray area, or as someone else put it, inviting litigation. no one can give you an exact answer, because it is dependent upon the decision of the judge. judges dont all give the same verdict. lawyers dont all give the same advice.

a trust document does not have to be written in lawyerese. in fact, it is better that it is not.

it simply needs to be concise, so that there are no ambiguities, or multiple ways of interpreting things. and if the trust is to outlive the grantor, then one wants the document to be as complete as possible, addressing the types of issues that are likely to arise.

you are already aware that what you are doing sounds ambiguous. if you think so, pretty good odds that others may think so. some of those others may be the judge that is hearing your case.

amendments involving beneficiaries is just a very poor way of doing things - especially when you are aware that there is a beneficiary who does not want to follow your wishes.

 

[JimPeters]

Okay, I understand that it might be better to take this to a lawyer. Maybe it would be better for everyone with questions here to see a lawyer. I'm making a necessary choice not to do so at ths time, so I'm trying to learn as much as possible here, if anyone can clue me in on a few principles that apply to my situation.

I see the ambiguity. Can anyone suggest a way to disambiguate it?

One thing I did in the amendment is to conclude by saying that the amendment supersedes any terms in the trust which contradict terms in the amendment.

My language is concise and clear. What I want cannot be misinterpeted by a literate person (to grant my daughter the privilege to live in my residence for a year after my death). My questions are whether it is legal and, if not, what could be changed to make it legal, even if it means scrapping the amendment and writing a new one. Or use another method.

 

[TrustUser]

okay. at this point, part of what you are asking is "how do you think a judge might see it ?"

that is probably something that only someone who regularly appears before judges, could give you some sort of experienced answer. obviously, that is not me. but i do believe that your clause in the amendment about superseding does some good. a judge will at least try to make a decision based upon what he thinks you wanted.

and the less ambiguous you make it, the less apt a beneficiary would be to seek litigation, and i am guessing the less apt a lawyer would be to pursue the litigation.

that is just my personal opinion.

i just really cant see how your son would make that big of a deal about your daughter staying in the house for a year. as i said previously, he would show no respect for you at all, if he tries anything. i assume you have obviously told him in person what you want, so there is no ambiguity at all for him, in knowing your wishes.

best of luck in whatever you end up doing.

 

[TrustUser]

hi jim,

one last comment - a lawyer's first ploy is always to intimidate. if he can make you back off, while he does nothing, that is his best gambit.

so try to make your amendment as intimidating to someone as possible, so that it never comes before a judge, in the first place.

someone on the site has let me know that my sentences are not very clear, so if you have a problem understanding what i just said, let me know, and i will try to clarify for you.

another thought - do you have a "no contest" clause in your trust ? basically language that disinherits anyone should they contest the trust ? this would work perfectly in this case - because since your son stands to eventually get 50%, he stands a lot to lose. that should intimidate the heck out of him.

 

[JimPeters]

Thanks to TrustUser for your comments, which are clear to me. And to tranquility for yjr warning.

Does the no contest clause apply to amendments?

A reason I'm concerned is because my son has strong views, would take his trustee authority seriously, and may argue that his judgment is better than mine.

You, TrustUser, spoke of trusts within trusts. How might this apply?

What about the idea of leasing the residence to her for two years (I won't live that long) or more to be safe, with a clause saying that in the vent of my death the lease would terminate in one year?. Would the lease survive me? I'm just exploring ideas.

I understand the point about how I'm asking about specific cases, rather than general. But maybe that makes my questions more clear to answer in general terms.

 

[TrustUser]

the amendment is considered a part of the trust document, just like the no contest clause is part of the trust document.

trusts within trusts ? not too sure what you mean, here. i did mention a trust document being able to create multiple trusts. the document itself is not a trust. it is a set of instructions, whereby typically there is an agreement such that it creates a trust.

there is no such grounds that a trustee has the authority to say that the trustee's judgment is better than the trustor's.

the trustee's job is to follow the instructions laid out in the trust. now if he truly does not understand what the trust wants him to do, he might need to get an opinion from a judge. but he cant legally say his judgment is better than yours, unless of course the trust document gives him that leeway (i have never seen that done, but i suppose it could be).

that is about all the help that i can give you. i dont like to step out of my bounds of doing something that i would never do, in the first place.

i am not too sure why you have your son as trustee, in the first place. the most important quality that a trustee should have is honesty/integrity. your son gets no points from me, in that regard, so i would never use him, in such capacity. only after honesty/integrity is met, does business savvy come into place. a trustee, who is honest, can still hire someone to help carry out the instructions in the trust, as desired, and get the job done correctly.

but i would create a separate trust, place the house in it, and have your daughter, as trustee. then you can rest in peace that the house will be distributed according to your wishes. i realize that you arent willing or able to do this, so i can just wish you the best with what you decide to do.

 

[JimPeters]

Thank you. I've probably asked too much of you. I appreciate your help.

Just to end off. I want to say that my son is a good boy, I shouldn't have made him sound otherwise. He was designated successor trustee 12 yeas ago, he's capable and honest and I wouldn't dethrone him. He'd be bitter because he wouldn't understand. If I can just fix this little issue, all will be fine.

I'll try to make my questions more general.