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There is a conflict between moms living trust and her will

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M

madissons

Guest
What is the name of your state? What is the name of your state? california

My mother died in February, and I was named as executor/trustee in the living trust she had a financial corp. prepare for her. After much debate between my 3 siblings and I, I decided to seek the advice of a probate lawyer. I trust her judgment (having 20 yrs. experience). However, she states that the trust and the will are in conflict over the status of moms personal property.
The trust states that all assets are to go to her grandchildren to be used for college. The will, however, states that her personal property (jewlry, clothes, furnishings etc...) are to be divided among us four children.
To add another wrench to this mess, she amended "sched. A"
of the trust five years after having written the original trust, to include specific items to be left to specific people.

Help....I am having difficulty in getting a straight answer from our attorney!
 


ALawyer

Senior Member
Living trusts are wonderful when prepared properly, properly funded, and properly maintained. They can be a nightmare when any of the elements is lacking.

My guess is that, especially if an attorney did not prepare the Trust and give appropriate instructions as to how to manage the trust, and if there was no ongoing professional review of her estate plan over the succeeding years, things are not all that straight forward.

Here the terms of the trust seem rather unclear. If as you say the terms of the trust were that all assets should be used for the grandchildren's education, would you be expected to sell things like silverware and photos and other items of personal property whose primary value is sentimental? What did the Trust provide as to when "education" starts -- nursery school, grade school, high school, college, grad school? What would happen if one or more or all of the grandchildren already completed their education? Or should all the assets be used for the one who did not complete the eductaion? SHould it be divided up equally among the grnadchildren, and what about grandchildren that may yet be borne?

There may be questions as to whether assets the trust maker owned in her own name at the time she created the trust had been placed in the trust at its inception or later.

There also may be questions as to whether assets acquired after the trust was established were placed in the trust, including assets she may have bought or inheritied.

Then there is the issue as to whether assets placed in the trust may have been removed from the trust, and returned to her own name, or given to others, and if so, whether the removal was lawful and comported with the terms of the trust for removal of assets.

Further, if there were amendments to the Living Trust the first question that arises is was the amendment effective? Was the amendment done in the manner the Trust should have specified for the maker to amend it? (For example, if the Trust said all amendments must be in writing and notarized, and the amendment was not notarized, it would have been ineffective legally. If the Trust said any amendment had to be in the maker's handwriting or witnessed by 2 people, and it was typed and signed but not witnessed, it would not be effective.)

If the Trust clearly was amended in accordance with the terms of the Trust, and the trust maker was mentally competent at the time, and not operating under the basis of duress, fraud, undue influence, etc. then the amendment would be effective.

If the trust maker was like most of us, she probably did not spend very much time on formalities and details -- which often are critical in determining the outcome of legal matters.

Given this it may not be possible for a lawyer to be 100% confident of any answer and assure you that if someone were to contest the decison of the successor trustee or executor of the will and it went to the State Supreme Court there would be no reasonable doubt as to the outcome. And unless you all have all the money in the world, and enjoy spending it on lawyers, that's not very practical.

Here are the basics.

IF an asset was placed into the Living Trust, and not removed from the living trust, it is owned by the living trust and by law would pass according to the dispositive (who gets what) provisions of the Trust. What the Will says is thus legally irrelevant -- it is almost as if the Will was that of a stranger as it can not dispose of property owned by the Trust (except to the extent the Trust may specify otherwise, as technically the deceased did not own that property.

A later Will, if valid, may reflect her intentions, but those intentions are not legally controlling as to assets in the Trust.

If one is not sure if an asset is in the trust or not, or some members of the the family want to honor the later wishes expressed in the Will regardless of the legalities and terms of the trust, that creates a problem. It is a particular problem if some of the would be beneficiaries are minors and thus not empowered to make legal decisions on their own. or the family is disfunctional.

How does one get out of this type of conundrum without creating family discord and possible inter-generational conflict, not to mention spending large amounts in legal fees? One approach might be to get advice from a lawyer who would in effect serve as a mediator, and have the opportunity to review all the documents, ask the appropriate questions and help the parties at interest fashion an acceptable compromise situation.

Another approach is to get separate counsel for each party at interest (especially if the amounts are large) as there would be serious conflicts of interest.

Another approach may be to
 
M

madissons

Guest
Thanks for your response "A Lawyer", I apprieciate all the advice I can get. Your response was cut off at "another approach would be..." Also, I would like to ask you if I would offend my attorney by sharing with her this important advice you have shared with me?
Thanks,
Madissons :)
 

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