How much can be changed in a joint trust after one party dies?

[curb1]

Are the provisions for the beneficiaries of the "new trust" basically the same as the original trust? Is there still the 50-50 split in assets? I am not seeing much out of this except a power struggle. Has this new trust been funded? Have all of the assets been transferred into this "new trust"? The transfer is a formal process that needs to happen to have the "new trust" funded. The "new trust" could be empty, especially if authored by sister. This "new trust" would have a different date than the "old trust" with a different name, most likely.

 

[TrustUser]

cliff,

you made a statement that it is a joint living trust, not an a/b trust.

that statement is not accurate. a joint living trust is simply a way of saying that your mom and dad are trustors and most likely the original trustees.

whether it is an a/b trust talks about the distribution.

there should be language in the trust as to what happens with the assets at the time of death of the first spouse. if a second trust is created, then it is an a/b trust. if not, then all control stays with the living spouse.

so again, read the distribution instructions.

i tend to disagree with curb and and ant regarding talking to your sister. talk is fine, if by that you mean that you come on strong and tell the sister that things need to be put back the way that your dad intended them to be.

your sister did something behind your back, and in disagreement to your wishes. unfortunately, your dad is gonna need to be yanked at least one more time to get things straightened out at the bank.

if you wait until after your dad dies, you will be stuck with a situation that will present a lot more challenges for you. get things fixed while your dad is alive. from what you describe, your sister is the type of person that will get away with whatever she can.

 

[anteater]

Wondered when you would show up.

i tend to disagree with curb and and ant regarding talking to your sister.

I would like to point out that I do not believe that I said anything about talking to the sister - although, admittedly, I am not inclined to re-read my responses.

[ADDITION: OK, I lied. I did take a look back and I guess my seconding of curb's comments could be interpreted that way. But I was thinking more along the lines that the "frank and honest discussions" take place after father passes away.]

So far as I can tell, the only things that the OP objects to are:

1) Sister being named successor trustee.
2) The in terrorem clause.

While dealing with a rouge trustee may be a pain, there are remedies. And, if it is a question of what the sister might do in administering the trust, the in terrorem clause is not relevant. I just find making a 94 year old man (apparently with a limited understanding of what is going on) the rope in a tug-of-war between siblings very troubling. Let the courts be the rope after the father passes away.

 

[curb1]

Trustuser said, "your dad is gonna need to be yanked at least one more time to get things straightened out at the bank".

You do know that there are laws about "yanking", especially with a 94 year-old person with affected mental capabilities. You are really trying to get a court fight going. Not the best of advice.

 

[TrustUser]

not at all. i am trying to keep a court fight from happening. take care of things while they can be taken care of.

i would come on strong with that sister. just ask any attorney - that is the first piece of action. whether you are bluffing or not, you at least make the other person choose to act.

the sister must know she would have limited chances. her chances to succeed get better as time goes on. stop cancer before it has the chance to spread. if and when the father is no longer competent, that sorta ends the op's chances while the father is alive, and then he has to deal with a rogue trustee.

i stick with my advice.

if the sister is smart, she will succumb to her brother, and both will approach their father as to fixing things at the bank/brokerage. in this way he is not being "yanked".

it seems doubtful that any deed would have been signed to transfer any real estate into the bogus trust.

 

[TrustUser]

it is a shame that we have people that greedy.

but as ant has said before, this site does not usually get the "everything is going perfectly" cases.

 

[Cliff421]

Are the provisions for the beneficiaries of the "new trust" basically the same as the original trust? Is there still the 50-50 split in assets? I am not seeing much out of this except a power struggle. Has this new trust been funded? Have all of the assets been transferred into this "new trust"? The transfer is a formal process that needs to happen to have the "new trust" funded. The "new trust" could be empty, especially if authored by sister. This "new trust" would have a different date than the "old trust" with a different name, most likely.

This excellent question just brings up more questions. My sister "retyped the trust" and changed the first successor trustee and added a couple of clauses, and change it to where Dad is trustee. However, she didn't change the name of the trust or re-title any assets which are already in the name of the trust such as the home, the car, bank accounts, etc.

She just took Dad to a notary and then to the bank, gave them the new "version" of the trust and they accepted him as the new trustee and made him the only signer on the account.

(As a side note, my sister tried to get the bank to let her sign too, but and inexperience bank clerk told my sister they can't do that. Well, I know better because I used to be a banker, and additionally my sister and I both used to sign on the account when Mom and Dad were alive. They were joint trustee and my sister and I signed via a limited power of attorney form which the bank has. They just stapled it to the sig card.)

In the eyes of my sister, the bank, and Dad, it is not a "new" trust. It is just a change in the original trust with the same assets.

I don't understand how changing the trustee but not the trustor and changing the 1st ST and adding a couple of paragraphs I don't like would make it a new unfunded trust??

Thanks,

Cliff

 

[TrustUser]

a new trust document is a new trust.

an amendment is how you change an existing trust.

what your sister did reminds me of our horrible lawmaking system.

while changing a main law, they add little things in there to benefit themselves.

there was a reason the dad made the op the successor - he is the better money manager.

at 94, he changes his mind about who the best manager is ? yea, right !!

the sister is gonna be a real problem after the dad passes.

 

[Cliff421]

cliff,

you made a statement that it is a joint living trust, not an a/b trust.

that statement is not accurate. a joint living trust is simply a way of saying that your mom and dad are trustors and most likely the original trustees.

whether it is an a/b trust talks about the distribution.

there should be language in the trust as to what happens with the assets at the time of death of the first spouse. if a second trust is created, then it is an a/b trust. if not, then all control stays with the living spouse.

so again, read the distribution instructions.

The distribution instructions have not changed. It says that everything is to divided equally between my sister and me, with nothing at all set aside for just one of us over the other.

i tend to disagree with curb and and ant regarding talking to your sister. talk is fine, if by that you mean that you come on strong and tell the sister that things need to be put back the way that your dad intended them to be.

your sister did something behind your back, and in disagreement to your wishes. unfortunately, your dad is gonna need to be yanked at least one more time to get things straightened out at the bank.

if you wait until after your dad dies, you will be stuck with a situation that will present a lot more challenges for you. get things fixed while your dad is alive. from what you describe, your sister is the type of person that will get away with whatever she can.

You are spot on. Not only that, my sister is already bleeding the estate by taking home "things" which are my childhood memories, my Mom's jewelry (also a childhood memory) and getting some money from Dad.

She is crooked and sneaky, including changing this trust being sneaky.

All three of us agree there needs to be a meeting the second week in June when my Sister comes back because there are errors in my sister's typing. For instance on the first page it clearly names Dad as trustee, but in the body in another place it clearly says my sister is the current trustee.

When we have that meeting I have a better than 50/50 chance of getting it changed back exactly as it was when Mom died with Dad as trustee.

"Dad, this is what you and Mom agreed on. Dad, this is what Mom wanted. Dad, when Mom died, she believed this is the way it would be and that you would stay with that."

Of course not all at once like that, but I expect Dad to get very sentimental about that and do what Mom left as their joint agreement.

 

[Cliff421]

a new trust document is a new trust.

an amendment is how you change an existing trust.

what your sister did reminds me of our horrible lawmaking system.

while changing a main law, they add little things in there to benefit themselves.

there was a reason the dad made the op the successor - he is the better money manager.

at 94, he changes his mind about who the best manager is ? yea, right !!

the sister is gonna be a real problem after the dad passes.

Thank you. When Dad's attorney changed the trustee at the hospital last year, he didn't us an amendment. He used a whole new trust - his original one - changing only the trustee, removing places for Mom to sign since she had passed, and the dates. He is a specialist estate planning attorney who's been doing it for 30 years, but that doesn't mean he isn't capable of an error in his thinking.

 

[Cliff421]

a new trust document is a new trust.

an amendment is how you change an existing trust.

what your sister did reminds me of our horrible lawmaking system.

while changing a main law, they add little things in there to benefit themselves.

there was a reason the dad made the op the successor - he is the better money manager.

at 94, he changes his mind about who the best manager is ? yea, right !!

Exactly. Dad did not read or fully understand the changes in the trust. He just signed it.

the sister is gonna be a real problem after the dad passes.

Exactly, and I'm trying to figure out what happens if Dad dies between now and June. I'm trying to figure out if the new "trust" is even valid. I remind he was hospitalized last week with another heart attack.

I believe I can probably prevail with Dad in June if he lives that long.

I would love to find out the the trust my sister drew is a new, unfunded trust, and that the old one holds the assets. I would love to find out that by the same law, the one the granddaughter drew and tricked Dad into signing was a new unfunded trust.

I would love to find out that a trust can be changed only by amendment because that would make Dad the trustee and me the first ST.

Thanks!

 

[TrustUser]

cliff,

it is one of the many advantages a trust has over a will.

as opposed to just a person's wishes, a trust is a legal entity that owns assets.

the fact that a new trust was written does not affect the assets in the old trust.

however, it does sound like the bank assets have been switched over. if your dad presented the bank with a new trust document, the funds could have been re-titled right there, assuming the bank recognized your dad as someone who had control of the money in the original bank accounts.

with real estate, a deed would need to be made to change title.

this is why i am strongly advising you to see what's up asap.

once dad is dead or incapacitated, you will have to wait to see how much damage has been done.

do you know what your dad owns ?

you can check county records for real estate ? here in california, deeds can be recorded after the death of someone.

i dont know how tricky your sister is, and also how knowledgeable. she could hold a deed in her hand, but not record it until such time that nothing can be done.

but allowing her to be the successor trustee puts you behind the 8-ball. sure, you might eventually get her booted out, but not before an awful lot of damage is done.

 

[Cliff421]

Thanks so much. Dad is not wealthy and it's not money I'm concerned about.

I'm the only one in the family with real assets anyway.

As for Dad's house, it was free and clear until about 10 years ago when I told my folks about reverse mtgs and help them get one. Then I helped them refinance it for more money when the market spiked. Now the market has tanked and there's more owed on the house than it's worth. The lender can have it.

Dad has a free and clear 2004 Toyota Camry with 4,000 miles on it. Big deal unless you need a nice mint, garaged, rust free zone driver. I don't and it's not part of my childhood.

I'm concerned about things which represent my childhood memories which my sister will pilfer the moment Dad dies unless I have the authority to lock the house, "trespass" her, and set up a meeting with her so that we can divide up what's there. I'm 65, my sister is 68 and Dad is 94. Mom died at 92 last year and they were married 68 years.

There is a truckload of really nice things in that house which might not mean much to someone else, but they are part of my childhood.

Mom and Dad were "pickers" long before I ever heard the word, but they had good taste and didn't clutter. Some of the things are from my Mom's childhood in the Ozarks and are hand made and even tole painted etc. Some are much older than Mom was and were given to her by her grandparents.

There's a hand made butter churn to die for, and I actually used it regularly when I was in grade school because we traded neighbors for fresh whole milk. I want it.

When my sister came down last year for Mom's funeral, she took all of my Mom's jewelry including her wedding rings and some other memories, worth perhaps $5k. Her excuse was "Mom promised it to me" but that's not what the trust says. It says everything 50/50 and there are no exceptions. I never heard about Mom giving that jewelry.

Frankly, I'd like to be in a position to look my sister in the eye, tell her she already got $5k and now it's my turn.

Now, behind my back my sister has done this new trust which bumps me as 1st ST and added the clauses including the one which says if I challenge it I lose my inheritance.

I would love to know that the new trust is not funded with the household goods as the original is.

Yes my sister took Dad and this new trust to the bank and by what's said by others here, probably transferred the money into the new trust by presenting the new trust and putting Dad back onto the accounts with it. However, there's only maybe $100k there. Dad has lots of SS and military retirement now (got his Vets disability increased to $2,000 per month last year and with his SS, he can't spend all of his income.)

 

[Cliff421]

If it would interest any here who are patriotic at all, I'd like you to know that Dad is a vet of D-Day and Normandy, fought his way through France and into Belgium. Just before he reached what was to become the Battle of the Bulge he was wounded and evacuated to England and then sent back to the US.

He has a Purple Heart and then also a Bronze Star for bravery in battle. His discharge papers also verify them.

He was a machine gunner "safely" inside a tank. They had approached a ditch the Germans had dug and it was full of Germans. Dad was laying down suppressive fire to make the Germans keep their heads down so that the foot soldiers could get close enough to lob in grenades. Dad was so worried about those other soldiers who were outside the tank that he kept running that machine gun long after it got too hot to be safe. In fact it got red hot and blew up in his hands and he was hospitalized for 6 months for his hands.

That was the bronze star.

Cliff

 

[curb1]

Congratulations for your father. I have my Bronze Star. They aren't easy to come by.