Pre-Emptive Action as Beneficiary of Trust

[12knots]

California
My father's in his late eighties is showing some minor signs of dementia. I am not on good terms with his second wife in her late sixties. Real estate is the primary asset of contention. My father had a will and trust drawn up a year after his marriage to her approximately 20 years ago which he provided me a copy of at the time where I am named as a beneficiary. She is the executor and has POA. I am named as a successor executor. He has within the last year stated that he changed the trust quite clearly from complaints by his second wife, and will not disclose the changes to me. I know that undue influence is subjective, but my main concerns are:

1) What pre-emptive actions can I take now if any, if my father will not discuss anything with me?

2) My father has recently mentioned that they both may be seeking residency (possibly with US dual citizenship) in another country. Given the circumstance, I see the possibility of her trying to move assets after selling the primary real estate holding out of the country thereby avoiding any sharing of the inheritance. Is there any pre-emptive action I can or should take?

 

[quincy]

California
My father's in his late eighties is showing some minor signs of dementia. I am not on good terms with his second wife in her late sixties. Real estate is the primary asset of contention. My father had a will and trust drawn up a year after his marriage to her approximately 20 years ago which he provided me a copy of at the time where I am named as a beneficiary. She is the executor and has POA. I am named as a successor executor. He has within the last year stated that he changed the trust quite clearly from complaints by his second wife, and will not disclose the changes to me. I know that undue influence is subjective, but my main concerns are:

1) What pre-emptive actions can I take now if any, if my father will not discuss anything with me?

2) My father has recently mentioned that they both may be seeking residency (possibly with US dual citizenship) in another country. Given the circumstance, I see the possibility of her trying to move assets after selling the primary real estate holding out of the country thereby avoiding any sharing of the inheritance. Is there any pre-emptive action I can or should take?

Your dad is a married adult. Even if you are correct that your dad is showing minor signs of dementia, there does not appear to be anything you can do. There are no preemptive actions for you to take. Your dad and his wife of 20+/- years are not obligated to tell you anything. Sorry.

 

[zddoodah]

Real estate is the primary asset of contention. My father had a will and trust drawn up a year after his marriage to her approximately 20 years ago which he provided me a copy of at the time where I am named as a beneficiary. She is the executor and has POA.

How is the real estate titled? In your father's name? In your father's name as trustee of the trust? In someone else's name as trustee? In your father's and stepmother's names jointly? Something else?

Who is the trustee of the trust?

Is the will a pour over will (i.e., does it basically say that the entire estate goes into the trust)?

What pre-emptive actions can I take now if any, if my father will not discuss anything with me?

None. As long as your father is alive, the will is a meaningless document. My guess (and it's nothing more than an educated guess) is that the trust is solely for your father's (and perhaps also your stepmother's) benefit as long as he is alive, and you are only a contingent beneficiary. If I'm right, that means you have no rights under the trust until your father dies (or whatever condition stated in the trust occurs).

Is there any pre-emptive action I can or should take?

Again, no.

 

[quincy]

The only action I can see for you to take right now is to start working on forging a better relationship with your stepmother. Based on age alone, it is likely that your stepmom will outlive your dad. If you want any of your dad’s possessions after he dies, being nice to his wife might be the best way to ensure you get something.

 

[Taxing Matters]

I know that undue influence is subjective,

As the spouse of the deceased is considered one of his natural subjects of his bounty (a term referring to closely related family) it is quite common for a will or trust to give some or all of the decedent's assets to his/her spouse. That makes challenging what he gives her in his will or trust more challenging. Making the challenge based on undue influence makes that even harder. Undue influence is more than just urging him to make changes. She has to have done something strong enough to overcome whatever desires he had for giving his property and change that to giving it to her. Put more plain terms, you'd have to prove she went well beyong the norm in persuading him to change the will. Your suspicions don't count; those suspicions aren't admissible evidence. You'd need evidence showing she was so overbearing that she forced him to cave into his demands. You need some strong evidence to convince a court of that.

1) What pre-emptive actions can I take now if any, if my father will not discuss anything with me?

It's his will and trust and while alive its up to him to decide who gets to see it. Since any gift to you would occur after death and he can change his plans as often as he wants while alive there is nothing you can to force him to show you the will and trust documents, let alone forcing him to change it. Very likely that trust gives you no present interest in any trust property and instead passes it to you at his death. So you aren't entitled to anything now as you don't have a fixed claim to any assets. That comes after he dies.

2) My father has recently mentioned that they both may be seeking residency (possibly with US dual citizenship) in another country. Given the circumstance, I see the possibility of her trying to move assets after selling the primary real estate holding out of the country thereby avoiding any sharing of the inheritance. Is there any pre-emptive action I can or should take?

Assuming he is legally competent there is nothing you can do to stop him from moving or from giving her his assets. Those are things that are within his rights to do and as you have no interest in property before he dies you lack standing to bring any claim. Legal competance is not a very high bar to cross. If he has just mild dementia he's not yet incompetent. If he does become incompetent his wife would stand first in line to be given guardianship over him.

Bear in mind that what he owns are his assets to do with as he pleases during life. You don't have a claim to assert while he's alive. And if you keep pressing the issue with him you may tick him off to the point of alienating him, with the result that you may end up with even less of his estate. I suggest you accept that he owes you nothing and adopt a view of being grateful for whatever he does give you. That will make things easier for you when he dies and is less likely cause the rest of the family to start squabbling over asset and end up ruining the family relationships.

 

[Litigator22]

California
My father's in his late eighties is showing some minor signs of dementia. I am not on good terms with his second wife in her late sixties. Real estate is the primary asset of contention. My father had a will and trust drawn up a year after his marriage to her approximately 20 years ago which he provided me a copy of at the time where I am named as a beneficiary. She is the executor and has POA. I am named as a successor executor. He has within the last year stated that he changed the trust quite clearly from complaints by his second wife, and will not disclose the changes to me. I know that undue influence is subjective, but my main concerns are:

1) What pre-emptive actions can I take now if any, if my father will not discuss anything with me?

2) My father has recently mentioned that they both may be seeking residency (possibly with US dual citizenship) in another country. Given the circumstance, I see the possibility of her trying to move assets after selling the primary real estate holding out of the country thereby avoiding any sharing of the inheritance. Is there any pre-emptive action I can or should take?

Why are you unwilling to accept that in making testamentary provisions for the comforts and sustenance of his spouse and companion for a score of years dad was acting out of love and devotion and fulfilling a normal sense of responsibility for her future welfare. Such eagerness to invade this couple's privacy and substitute your avaricious desires in place of theirs is shameful.

 

[adjusterjack]

Such eagerness to invade this couple's privacy and substitute your avaricious desires in place of theirs is shameful.

Yet it is all too common as I have seen here and on other sites where the son or daughter of the deceased resents the idea of the parent's second spouse getting anything.

 

[quincy]

Yet it is all too common as I have seen here and on other sites where the son or daughter of the deceased resents the idea of the parent's second spouse getting anything.

What is also all too common are children who are resentful and fighting over inheritances when their parents aren’t even dead yet. I will never understand why some people think their parents owe them houses or cars or money or anything when they die.

 

[Taxing Matters]

I will never understand why some people think their parents owe them houses or cars or money or anything when they die.

My theory is that because most parents do leave at least some part of their estate to their kids it's become something of a wide spread belief that getting that inheritance is, if not a legal requirement, at least a social obligation. And then if they dont receive what they think their parents were obligated to give them, they either become very disppointed and hurt feeling the parent never really loved them or they become spiteful and vengeful. A lot of that can be avoided by parents explaining to their kids what to expect, why they made that choice, and most importantly that what portion of the estate, if any that the kids get has no relationship to how much the parent loved and cared for the child. Shrouding the estate plan in secrecy can result in kids feeling that they were cut out or got less than they expected because of some dislike by the parents. I tell estate planning clients to consider discussing their estate plans with their kids if the estate plan is something other than just dividing it up among the kids or giving it to the other parent and what can happen to the relationships among the kids if they are left in the dark. Some clients choose to tell their kids and others don't want to spark arguments they fear they'll get from the kids and leave it secret until the plan is revealed after the parent dies. I've rarely seen kids whose parents did the former make a big fuss over what they are recieving; I've see a lot more complaining and arguing when the parent does the latter.

 

[TrustUser]

it isnt that i think that the kids are owed something. but i also think that in most cases, the 2nd wife had money on her mind, when she got married. you can say that the father knew what he was doing, etc. but there isnt much argument as to what sort of person the 2nd wife is. and that bothers the children. and i cant say that i blame them. the children are part of the family. the 2nd wife is only chiseling her way in. and then probably most of the time leaves nothing to the children of the father, and leaves it all to her own children.

if i was a 2nd husband, it would be one thing to have my wife have it set up for me to live in the house, and earn all the income from the assets. but when i die, it goes to her kids. that would show i had a fair amount of responsibility and fairness. to have outright ownership of all the assets is way over the top, in my opinion.

 

[Taxing Matters]

but i also think that in most cases, the 2nd wife had money on her mind, when she got married.

That is a very gross over generalization. Yes, there are some spouses, whether first, second, or third or whatever that are merely gold diggers. But that's by far the less common case in my experience. Second spouses are not much more gold diggers than first parents are.

It is true that kids tend to have more problems with a step parent coming in because they think the step parent is meant to replace the parent. Parents that are remarrying often don't do a good job of preparing both their new spouse and the with realistic expectations about what the relationship is and how it will work. Most just take it for granted that everyone will adapt to the new situation with no problems. The parent also may be uncomfortable doing the communication that is necessary to build the relationships so that there is as little friction as possible. Nevertheless, a lot of those second marriages do work out just fine without having done that. Most second spouses that I've met are not gold diggers. That doesn't always prevent the kids being resentful of the step parent and the kids adopting a view that the step parent is only there to get as much as he or she can, even when it is not true.

 

[adjusterjack]

it isnt that i think that the kids are owed something. but i also think that in most cases, the 2nd wife had money on her mind, when she got married. you can say that the father knew what he was doing, etc. but there isnt much argument as to what sort of person the 2nd wife is. and that bothers the children. and i cant say that i blame them. the children are part of the family. the 2nd wife is only chiseling her way in. and then probably most of the time leaves nothing to the children of the father, and leaves it all to her own children.

I wish I had a buck for every time I read this kind of post, which I see about once a week on this, and other sites.

Spin it however you like, but they are typically cookie cutter protests from greedy offspring, of a bio-parent, who resent the second spouse getting a large piece, or all, of the bio-parent's estate.

Like you, they have nothing good to say about the second spouse.

 

[TrustUser]

i stick by what i said. if i am the 2nd spouse, i feel okay about being taken care of, especially if i have put a lot of time into the relationship. but i would not feel okay in simply inheriting everything when she died. and if a 2nd spouse feels he or she will take everything, then that clearly demonstrates to me everything i need to know about that person.

 

[Zigner]

i stick by what i said. if i am the 2nd spouse, i feel okay about being taken care of, especially if i have put a lot of time into the relationship. but i would not feel okay in simply inheriting everything when she died. and if a 2nd spouse feels he or she will take everything, then that clearly demonstrates to me everything i need to know about that person.

They've been married (at least) 20 years.

 

[zddoodah]

but i also think that in most cases, the 2nd wife had money on her mind, when she got married.

LOL...what?!

How does this speculative generalization help the OP?