Trusts Legal Questions

I'm sorry to hear about this situation.  It's sadly something that we see all the time.  Your chances depend on a variety of factors.  How long ago did your father pass away and how long has it been since you've known about the change to his pension benefits?  If too much time has passed, you may have lost your opportunity to file a claim.  Did your father have a will or was there an estate administration proceeding opened following his death?  You'd have to open an estate in order to raise a claim against the current beneficiary becasue the money, if the transaction was undone the money would probably have to be paid to the estate and then distributed according to his will or, in the absence of a will, the law of intestate succession.  Finally it will be important to know all about his congnitive condition at the time of the pension change and whether the lady had a power of attorney over him.  Did she sign or did he sign?  Those details will be important to know and you may not be able to investigate them before opening an estate.  You should seek out an attorney who litigates in orhpan's court regularly.  If you're in the Pittsburgh region, I invite you to contact my law firm.... Read More

Your restaining order should prevent him from sending you documents.  It is considered contact.   You were correct in not signing anything.  Listing your house as an asset of his trust doesn't make it so, and any responsible entity, including the IRS, would check the Registry of Deeds to determine who owns the property.  So don't sign any deeds or other papers and take a look at the restraining order.  If it includes any contact, you can contact your local district attorney and report the violation.  Good luck.  ... Read More

If the trust document says that assets are to be distibuted to your brother's wife upon his death, then you can follow the terms of the trust without need of probate.  If the trust terms state that any trust assets should be paid to your brother's estate, then you could distribute them to his estate but then you or his wife would need to file probate.  Trust assets are not probate assets.  Estate assets, or any assets not owned by the trust that your brother owned solely in his name, are probate assets.  Only probate assets require probate process.  Hope this helps.  ... Read More

Yes, your relative can change the terms of an existing Will.  The amendment is called a codicil.  The codicil, which can be handwritten or typed, should state that your relative reaffirms the existing Will except for whatever provisions he or she wants to change, and then specificallly state what provisions should be deleted and add the new language.  The codicil should be signed by your relative and two witnesses.  A separate sworn affidavit of the witnesses, signed by a notary, is useful although not necessary.   Your relative could give the beneficiary, a co-trustee or some third person the authority to remove a trustee.  It is customary in a special needs trust to give the trustee broad authority, but also the requirement that they act in the best interests of the beneficiary.  There also a pooled special needs trust that your relative may want to consider - these are administered usually by nonprofits and can be less expensive.  ... Read More

It is my understanding that trust property is not considered marital.  This depends on the terms of the trust, however.  If you are the trustee and have full access to the trust funds at any time, the court may consider them marital.  Likewise, if the trust has to pay you income, that income is considered marital.  The fact that she lives in the house also complicates things - for instance, she could claim that you both have invested marital funds in the house so that she is entitled to some equity.  This strikes me as a circumstance where an experienced attorney would be worth the cost.  ... Read More

Some of the answers depend on the specific language of the trust.  The trustee is bound to follow the language of the trust, but may not break the law along the way.  I do not think that a trustee would be successful in an eviction action based on your living with your husband and son.  You have a legal right to live with them.    ... Read More

Get a copy of the trust from who ever informed you that you are in charge.  If you know where the assets are maybe you can get a copy form the bank or financial institution.The trust also might be registered with the county if the trustee who was in charge before you had a trustee certificate.  ... Read More

My wife is a dual British and American citizen with property in the UK, so I understand your issues.  Yes, you can transfer the US and UK properties under one California trust that would control the disposition of those properties at your passing.  This is complex.  Contact an attorney for a full consultation.... Read More

You do not have to transfer title of the house to the estate.  In North Carolina, the law transfers ownership of real estate at the time of death to the heirs or the devisee of the real estate under the Will.  So, either you (and your siblings, if any) are considered the owners now in NC or whomever your parents gave the house to in their Will is the owner.    While title need not be changed right away, someone will want to get legal authority in NC so that he or she can transfer, refinance, or sell the house.  This requies filing probate in North Carolina. The first step is to determine whether one or both of your parents' estates need to be probated.  This depends on how they owned the property, which is in the language of their deed.  If they owned the NC house as joint tenants or tenants by the entirety, the surviving spouse owned the house and only that parent's estate needs to be probated.  If they owned the NC house as tenants in common, then each parent owned an interest in the house and each estate must be probated.  Check the language in their deed to determine which form of ownership applies.   A Will for an estate requiring probate must be filed in NC with the clerk of the Superior Court for the county where the land is located.  Depending on the language in your parents' Wills, you may be able to transfer the property as their heir or you may be required to gain appointment as personal representative of their estate to do so.  There also is a process whereby creditors are notified of your parents' deaths and given a deadline for presenting claims against their estates.  The forms to begin NC probate are available online at www.nccourts.org/forms.   There are a lot of nuances in this case and NC law regarding real property is quite different than other states, so you may want to seek the assistance of an NC attorney who practices in this area.  Goodl luck.       You can file court-certified copies of your appointment as executor with the NC probate court and they will recognize this appointment such that you have legal authority over any estate property in NC.  This is called ancillary probate.  ... Read More

Yes, a grantor can be the beneficiary of an irrevocable trust.   I think that your instinct to safeguard the house from sale or mortgage is a good one, but I don't think that an irrevocable trust will get you where you want to be.   An irrevocable trust just means that the trust cannot be terminated or modified.  Putting the house in an irrevocable trust probably woud not prevent your son from selling or mortgage the house; the trust could just sell the house.  I suppose that you could have specific language in the trust that the house cannot be sold or mortgaged for a certain period but I'm not sure that would work given that your son is the only beneficiary of the trust.   To restrict what can happen with the house, my thinking is that you would need to transfer ownership of the house from him or put some sort of restriction on his rights of ownership.  For instance, you could have him grant you a life estate or life lease, which would give you the legal right to live in the house or rent the house for your lifetime.  Any sale or mortgage would be subject to this restriction so very unlikely.  Or he could transfer some or part of the ownership of the house to you; if you owned all or part of the house (as a tenant in common, not a joint tenant) he would not be able to sell or mortgage without your agreement.  If he transfers the house to you, you could leave it to him in your Will or even put it in a trust that benefits you while you are alive but goes to him when you die.  Any of these would be recorded in the Registry of Deeds and so available to any bank or buyer.  You could sign an agreement with him that you will pay off his mortgage in exchange for his promise not to sell or mortgage, but this is not as desirable because it would not prevent him from selling or mortgaging, it just would enable you to sue him if he did so.  ... Read More

Yes, you can contact that attorney.  Keep in mind that the attorney represents the nephew in his role as personal representative.  The attorney does not represent your interests.  The nephew has a duty to provide an inventory of estate assets and an accounting, plus copies of court filings and his attorney should assist with this.  Four months is not a long time in probate world, and there is a creditor period of 4-12 months before any assets can be distributed.  The inventory, however, should have been provided to you within 60 days (12-10-16) unless your mother's Will says otherwise.   I'm sorry for your loss and hope you are able to get some answers.  ... Read More

I'm sorry for your loss.  The answer to your question depends on some details you didn't provide.  If your father's total assets are worth less than $25,000, you can use the small estate probate process.  If this is the case, you would sign a court form (I believe it is called a small estate affidavit in Tennessee, that's what it's called in Maine) and provide your father's death certificate to the probate court, you then would receive authority from the court to take control of all of your father's assets, including his personal belongings.  If his assets are worth more than $25,000, you will need to go through probate process to be appointed executor of your father's estate.  Again, you would contact the probate court to obtain the necessary forms.  Go to (or call) the probate court in the county where your father lived.  Nolo.com has some specific informaiton about Tennessee probate process, and the county probate court probably has a website too.  Good luck. ... Read More

If a person signs a document agreeing to give up a right or interest, without understanding it due to age or illness, and under the pressure or undue influence of another person, that document can likely be rescinded, if you can prove unude influence. It sounds like that's what happened to your father. I need more information regarding your mother. ... Read More

Your mother and the person who will be trustee after she dies should consult with your mother's attorney. If the trust terms allow, the trust could continue to receive and distribute the payments, or the trustee could assign the payments after your mother dies. In that case, your brother would send checks to each person for their proportionate share. If the trust receives the payments, a trust tax return will have to be filed each year.... Read More

Life estates are very difficult to give general advice about.  They derive from language contained in a will. Rarely is one life estate just like another. You cannot give away life estate. They exist for your life and generally only for you to reside in a home. If your child is the residuary beneficiary of your life estate, then giving the life estate to your child will unify the deed and allow the child to own the home in fee simple. This will result in the child being able to do whatever she wants with the home. Of course, you then have no additional rights to the home and can be evicted by your child. Without reading the language that created the life estate, it is hard to give complete advice about this situation.... Read More

Your information is contradictory. You say your aunt gave you 25% of the property. But you also say your parents inherited the house "as the sole survivors to the property." Either you were entitled to 25% of the property at your aunt's death, or you have no interest in the property at all. If you were not entitled at your aunt's death, you have no special rights at the deaths of your parents.... Read More