Very confusing old trust, pour-over will, and 'lost' handwritten will - please help..

[MTrustQ]

This question pertains to laws of California, and deals with an ambiguous Trust and Amendment (both dated the same day). I have a situation where the executrix of the estate is acting in a way that I feel is improper and unfair, and I would like to determine what my legal rights are (if any).

My father passed away in October 2000, and prior to his death he and I spoke about his last wishes. He clearly indicated that it was his wish for his kids to "get everything" when he died, and he assured me that his current wife would take care of his wishes and make sure everything was distributed the way he wanted. Throughout our lives, he was a very devoted father and always put the children first. There was never a doubt in the mind of anyone close to him that he would leave all of his cherished belongings and family heirlooms to the children.

After he died, things got really strange and painful.

He left a Trust that first specified a clear distribution of his multi-million dollar estate in a very equitable percentage-share basis, and then added a confusingly attached ammendment that changed the distribution so that his wife got virtually everything and the kids got a small cash distribution. This amendment was dated the same day as the rest of the Trust, so it baffles me why he would make such an amendment that was so drastically different on the same day as the original document was drafted. Can you see any logic in doing that?

He also left a a simple pour-over will that specified a "hand written" list of instructions for the distribution of his personal property - with the caveat that, if no note was found, everything goes to his third wife. His wife (the executrix of the estate) claims there never was any note, and claims that he specifically left everything to her to distribute as she felt appropriate. Today, I received a box of things that she said he "really wanted you to have" and that box included old socks, a box of rubber-bands, some unused old pocket calendars, unused writing tablets, and other items of similar "importance" to him. My sisters received similar bequeaths, and we are all really shocked and hurt by the weirdness of her distributions.

The box of meaningless items was surely some sort of sick way for her to lash out at us (none of us ever got along with her too well). I would like to find a way to have my father's property distributed the way he wanted - or at least in a way that a sensible person would deem appropriate. Do you have any suggestions, and is there any legal recourse I can take?

On another note, when she finally distributed the small amount of cash to each of us that his trust called for (after the 'no contest' period had expired), the checks all bounced. We raised a fit, and she finally put enough cash back into the account for the checks to clear, and lied about the reasons for the checks bouncing in the first place.

Thanks very much in advance for your help!

 

[ALawyer]

Use of a list to distribute personal property is a rather common procedure as it avoids having to specify in a Will who gets each of 100 items, particularly as items change, etc. (And lawyers hate to spend time -- and can't really charge for it -- writing up who gets the "pots and pans" and the who gets what item is often an impediment to getting a Will complete.

It may be that he never did get around to doing such a list, or that she threw it out.... I say that as I think you figured out the last wife correctly -- she was sticking it to you one more time by sending the crap "personal" stuff.

As for the why the amendment the same day? Did you (or better yet, your lawyer) ask the lawyer who prepared the Trust and the Amendment? Perhaps it is a forgery. Perhaps just sloppiness. The only logic I can see is that if the trust was prepared incorrectly, and he wanted to change it, the lawyer who wrote it may have said, "okay, instead of waiting until my office retypes the whole 20 page document, let's just sign the trust and then do an amendment that revises the one paragraph you want to change in an amendment."

and you like Did

 

[advisor10]

MAY 14, 2001

DEAR MTRUSTQ:

Why oh why didn't you ask these questions or contest the will/trust before the "no contest" period expired? You should have consulted an attorney long before now. It may possibly be too late to correct the situation now.

Is the estate still open nor or has probate been closed?

You need to seriously question the legitimacy of the amendment.

Whose signatures are on the amendment, or is it merely initialed?

Were there witnesses to the amendment?

Who is the trustee of the trust (who is administering or managing it?)

What is the trustee's opinion about how the trust has been distributed?

I would guess that the logic (or should I say "ill-logic) in doing it this way is to make it seem like that he did originally want you all to get a fair share, but attaching the amendment on the same day makes it look like (for some unknown reason) perhaps he had a deliberate change of heart. Still, nevertheless, that amendment is highly suspicious since it seems to contradict the intent of the trust.

The mention in the will about leaving a handwritten list of instructions may have been poorly worded and possibly a mistake. If he made such a list, it should have been attached to the will and the will given to an attorney or put in a safe deposit box for safekeeping. But what actually happened is that he probably did make the handwritten list and kept it at home with the original will, where of course the wife found it and probably then threw it away and pretends not to know anything about it.

There may not be anything you can do about getting the personal property, since the executrix has complete legal authority on how personal property is to be distributed.

How much cash did the children receive?

With a multimillion dollar estate, it seems that your share should have been substantially larger, unless his estate was burdened with large debts and high taxes. Forget about the personal property and try to go after getting a larger distribution of the trust.

Check with the probate court at the county courthouse to see if Maryland requires that executors post an executor's bond when handling estates. If they do, then there is a good chance that you may be able to recover any monies (that were stolen from beneficiaries of an estate, and possibly a trust) from the bond insurance company. Look at any probate documents for your father's estate at the courthouse, and make copies for your own personal records (if there are any documents on file there).

The main thing you should do is to take the pour-over will and the trust documents to an attorney (who specializes in trusts) and have them review it to figure out a strategy to find out if the trust monies were distributed properly. The fact that this executrix is very secretive about the estate affairs and tried to rip you all off is very suspicious and an indication that she may have claimed a larger share of the estate than she was entitled to.

The main objective of drawing up a trust is to keep the information confidential (it is not required to be reported to the probate court), so the main problem you may have here is in getting access to the trust documentsa to find out how the trust monies were distributed. Hopefully, your attorney can advise you on how to get access to that information.

Fight for your rights and I'm betting you will eventually get revenge against this selfish, greedy wife!

SINCERELY,

[email protected]

 

[MTrustQ]

Thanks very much for the responses and advice. I obtained a copy through the Trustee (his wife) after informing her that she had a legal obligation to provide a copy to any heirs that requested it in writing. I did consult an attorney during the 120 days that I could contest the Trust, but since there was a provision in the trust that disinherited anyone who contested the trust or will, and I had money to lose if the contest failed, he advised me against it. At the time, I was also emotionally drained from his passing, so I wasn't in the mood to get into a big battle.

The amount of inheritance was small in comparison to the overall value of the estate - on the order of a few thousand dollars out of the total $2.5 million (debt-free) estate. But, it was large enough that I didn't want to lose it through the slim odds of a contest, and I was hoping against all hope that she would be fair with the distribution and was just holding out until the contest period expired. My lawyer basically said that the scenario was the worst possible one - a trustee who has a personal interest in the estate, a no-contest clause that disinherits anyone who contests, and enough of a cash payout that I wouldn't want to lose it.

The executrix of the will is also the trustee, so she has complete control over everything.

The first amendment was signed and dated by my father on the same date as the trust. There is an attached notary signature form that is also dated that day - but no two signatures appear on the same page. Also, a second amendment (written on his deathbed, disinheriting a much liked business partner who was promised a portion of the business assets in exchange for reduced salary) was attached, so it was obvious that the first amendment was known to my dad.

The lawyer who drafted his trust runs a "trust mill" and does thousands of them each year. He doesn't remember anything about my dad's trust after all these years.

His wife was very controlling of him - and did many things to protect her interest in his estate. She managed all his finances, told him what he could and couldn't spend his money on, and did her best to isolate him from his family. She even went as far as to tell him that none of us visited him while he was unconscious in the hospital - even though we were there almost every day. I'm positive that the third amendment which disinherited his business partner was done in response to her demands - but that's really none of my business.

I'm wondering if there is some sort of legal recourse in the civil courts that I could explore. My father was always very clear about how he wanted his personal belongings distributed and the way she is handling the situation is causing everyone quite a bit of heartache.

Thanks again for your help.

 

[advisor10]

MAY 15, 2001

It seems as if you do have strong enough grounds for a civil suit, but you need to speak with an attorney in person who has experience with trusts (if you want to have him or an accounting firm examine the trust to see if it was distributed properly or perhaps misappropriation occurred), or are you merely interested in going after the personal property?

You should consider posting a similar message as you did here on the website http://www.legalmatch.com, where it is reviewed confidentially by other attorneys in your state. Any attorney that is interested in your case would contact you by e-mail (I guess, I have never actually used the site before).

SINCERELY,

[email protected]

 

[advisor10]

MAY 16, 2001

An important distinction to make here is that you will not be officially contesting the trust, but will be auditing it to see whether the terms of the trust were carried out properly to insure that the trustee or her attorney did not take unfair advantage.

 

[MTrustQ]

Thanks very much again for your help. I'm going to do whatever it takes to get this mess settled the way my dad would have wanted. I've talked to many of his life-long friends, and they all say that they are 100% confident that he would have been very specific with his wishes for the distribution of his personal property. It seems that the only person who alleges otherwise is the executrix and trustee. I don't know if personal testimony from his friends counts (one of them was his accountant some years ago), but I'm sure they would go to bat for us if this went to court.

Thanks again!