Grandfather willing estate to minor child.

[farmersson]

I am in Texas. My father, who is elderly and in bad health has informed me that the family estate, including a 200+ acre farm, cd's, stocks, etc...has been willed to my 3 year old daughter. What does this mean for my plans to take over operations of the farm, etc.?

 

[xylene]

It means you and your elderly father are not on the same page, at all, and that you need to persuade your dad to talk to an agribusiness succession planner about his farm. If that doesn't happen you need to get a lawyer to figure all this on behalf of your daughter stuff.

Bumpy fields to hoe, but it will be ok.

 

[farmersson]

I tried talking to him about it and he just gets angry. He is unlikely to go to an Agribusiness Succession Planner and I've talked to a lawyer who says I might should just forget about the farm. Dad's under the impression that because I am my daughter's guardian and the executor of the will, that I will be able to run the operation and handle the finances. My lawyer is doubtful about that. My lawyer says, in his opinion, the lawyer that allowed my dad to construct his will in this fashion is guilty of malpractice (unactionable).
If I can't get this ironed-out before he passes, in who's hands will the estate be until my daughter is 21?
I should add, that I have an invalid brother that my dad expects me to divvy out cash to, from the estate funds, over time.

 

[LdiJ]

I tried talking to him about it and he just gets angry. He is unlikely to go to an Agribusiness Succession Planner and I've talked to a lawyer who says I might should just forget about the farm. Dad's under the impression that because I am my daughter's guardian and the executor of the will, that I will be able to run the operation and handle the finances. My lawyer is doubtful about that. My lawyer says, in his opinion, the lawyer that allowed my dad to construct his will in this fashion is guilty of malpractice (unactionable).
If I can't get this ironed-out before he passes, in who's hands will the estate be until my daughter is 21?
I should add, that I have an invalid brother that my dad expects me to divvy out cash to, from the estate funds, over time.

Your daughter's legal guardian and/or financial guardian would be the person who would be in charge of the farm and its finances. That presumably would be you. However, you would have a fiduciary responsibility to your daughter that would actually prohibit you from divvying any cash out to your brother (except perhaps as a wage for actual work). I do not understand why your attorney is doubtful about that unless he thinks that someone would challenge your financial guardianship.

In this particular instance it would have been far wiser for your father to establish a trust, with you as trustee. It could have been designed to produce the result your father wanted (ultimate ownership to your daughter) but would have allowed for your brother to be provided for as well. Are you sure that isn't what your father did?

By the way, its not malpractice for an attorney to draw up a will that says exactly what his client wants it to say.

 

[farmersson]

Your daughter's legal guardian and/or financial guardian would be the person who would be in charge of the farm and its finances. That presumably would be you. However, you would have a fiduciary responsibility to your daughter that would actually prohibit you from divvying any cash out to your brother (except perhaps as a wage for actual work). I do not understand why your attorney is doubtful about that unless he thinks that someone would challenge your financial guardianship.

In this particular instance it would have been far wiser for your father to establish a trust, with you as trustee. It could have been designed to produce the result your father wanted (ultimate ownership to your daughter) but would have allowed for your brother to be provided for as well. Are you sure that isn't what your father did?

By the way, its not malpractice for an attorney to draw up a will that says exactly what his client wants it to say.

After going back and reading my notes, my attorney isn't doubtful about me being the financial guardian, he was explaining that the court would have to appoint a financial guardian, and I was unsure if that meant a judge or someone other than her legal guardian. He did say that all business transactions would have to be audited and approved and that would be an expensive process. I agree a trust would have been far wiser. Going on rumors he's either heard or made up out of thin air regarding what a nightmare a trust has been for a neighbor, he's dead set against a trust for now. I wish there was a way to convince him otherwise. Regarding the lawyer who drew up this will: I do not believe he could have explained to my dad, the ongoing expenses involved or the profound way this would affect my brother and I. I will have this responsibility of taking care of my brother, and without having the estate do that, this will be a heavy and harmful burden for me.

 

[xylene]

It is a lot better to make your dad angry about his gross negligence while he is alive.

 

[farmersson]

It is a lot better to make your dad angry about his gross negligence while he is alive.

I have been recording my phone conversations with my dad. He has stated that while he has willed everything to my daughter, his intention is for the estate to pass to me and then, when I die, to my daughter. I think he believes that since I am the executor and my daughter is the beneficiary, that is how it works. Would these recordings help me to challenge this will?

 

[xylene]

Challenge the will of someone alive now and talking now to set it right?

I'm sure your father is a hard fellow, some kind of titan of a man who can't handle the truth that his pride will result in the destruction and liquidation of his legacy and his disabled son left in hardship, even though it still remains in his power to set it right...

The truth is that his intentions don't match his actions, and that makes him a liar or a fool.

Why would you not stand up to someone willing to put your family in such dire straights?

 

[Silverplum]

Maybe he envisions the farm staying in the family "unto the third and fourth generations." (Yeah, I cribbed a little from the Bible, there.)

Let him know you'll walk and not work the farm for Miss 3 Years Old. You'll sell it off as her agent and be done.

 

[latigo]

I have been recording my phone conversations with my dad. He has stated that while he has willed everything to my daughter, his intention is for the estate to pass to me and then, when I die, to my daughter. I think he believes that since I am the executor and my daughter is the beneficiary, that is how it works. Would these recordings help me to challenge this will?

No!

If after granddad expires and his last will and testament (whether as presently described or altered) is submitted for probate, and whether it meets your expectations or not, NONE of your mentioned conversations with him regarding his testamentary intentions will be allowed to be aired in court!. Not as ammunition to contest the will or for any other purpose.

With few exceptions (none here) such oral declarations are absolutely inadmissible! Verboten!

Otherwise no person could be assured that their wishes as expressed in their last will and testament would be honored.

If you don't believe so, then research the subject: "The parol or extrinsic evidence rule".

 

[farmersson]

I'm sure your father is a hard fellow, some kind of titan of a man who can't handle the truth that his pride will result in the destruction and liquidation of his legacy and his disabled son left in hardship, even though it still remains in his power to set it right...

The truth is that his intentions don't match his actions, and that makes him a liar or a fool.

Why would you not stand up to someone willing to put your family in such dire straights?

I have stood up to him on this. If I'm on the phone with him, he tells me to change the subject or he'll hang-up. I don't change the subject, so he says, "call me when you have something else to talk about" and then hangs up. If I'm speaking to him in person, trying to talk to him about this, he tells me to leave. I think my next attempt will be writing him a letter. Perhaps, through that medium, he will be able to hear what I'm trying to communicate and understand what he's about to do to his legacy and his family.

 

[farmersson]

No!

If after granddad expires and his last will and testament (whether as presently described or altered) is submitted for probate, and whether it meets your expectations or not, NONE of your mentioned conversations with him regarding his testamentary intentions will be allowed to be aired in court!. Not as ammunition to contest the will or for any other purpose.

With few exceptions (none here) such oral declarations are absolutely inadmissible! Verboten!

Otherwise no person could be assured that their wishes as expressed in their last will and testament would be honored.

If you don't believe so, then research the subject: "The parol or extrinsic evidence rule".

Understood.

 

[farmersson]

Maybe he envisions the farm staying in the family "unto the third and fourth generations." (Yeah, I cribbed a little from the Bible, there.)

Let him know you'll walk and not work the farm for Miss 3 Years Old. You'll sell it off as her agent and be done.

Yes, I'm preparing to pen him a letter and intend to communicate this to him in as diplomatic way as possible.

 

[LdiJ]

Yes, I'm preparing to pen him a letter and intend to communicate this to him in as diplomatic way as possible.

You need to explain to your father, in the letter, that if he leaves everything to your daughter in the manner that he describes, that you, or anyone else the court appoints to be her financial guardian, would not be permitted, under the law, to provide any funds to your brother or for your brother's support. It would be different if your daughter was an adult rather than a minor, and she chose to provide for her uncle, but she is not, and her financial guardian cannot give away her money without getting into serious legal trouble.

Tell him that you understand that he is uncomfortable with trusts, but if the estate is put into a trust, for the benefit of you, your brother and your daughter as beneficiaries (with your daughter also being the successor beneficiary) then that will allow you to provide for your brother out of the estate. Tell him that he can explain to his lawyer exactly what he wants to happen and the trust can be written to do exactly what he wants to happen. If he doesn't want the farm sold, then he can include that information in the trust.

Also, suggest that he verify the information with his attorney, so that he will know that you are telling the truth about being unable to provide for your brother from the estate, if its all left to your daughter.

 

[farmersson]

You need to explain to your father, in the letter, that if he leaves everything to your daughter in the manner that he describes, that you, or anyone else the court appoints to be her financial guardian, would not be permitted, under the law, to provide any funds to your brother or for your brother's support. It would be different if your daughter was an adult rather than a minor, and she chose to provide for her uncle, but she is not, and her financial guardian cannot give away her money without getting into serious legal trouble.

Tell him that you understand that he is uncomfortable with trusts, but if the estate is put into a trust, for the benefit of you, your brother and your daughter as beneficiaries (with your daughter also being the successor beneficiary) then that will allow you to provide for your brother out of the estate. Tell him that he can explain to his lawyer exactly what he wants to happen and the trust can be written to do exactly what he wants to happen. If he doesn't want the farm sold, then he can include that information in the trust.

Also, suggest that he verify the information with his attorney, so that he will know that you are telling the truth about being unable to provide for your brother from the estate, if its all left to your daughter.

You guys are wonderful. I can't tell you how much I appreciate your help.