Trusts Legal Questions

Generally when funding your revocable trust only you and the current trustee of the trust- which is likely you - would need to sign anything. So, it shouldn't be necessary to get the signature of successor trustees. But, if for some reason a financial institution requires a successor trustee's notarized signature, the successor trustee can have his or her signature notarized in the state in which he or she resides. It does not need to be an Oregon notary.  John SorlieBryant, Lovlien & Jarvis, PCBend, Oregon... Read More

In theory, the waiver of an inventory and reports only applies to the normal requirement that those documents be filed with the probate court, and does not mean that they do not have to be provided to heirs. However, in many cases administrators who aren't required to provide those documents to the court don't end up providing them to the heirs, either unless their attorneys push them to do so. Keep in mind, however, that not waiving the bond, inventory, and reporting requirements will likely mean that the estate administration costs more, which in turn may reduce the amount ultimately available for distribution. Not waiving those requirements may provide you with better protection but there are trade offs. You are entitled to have your own attorney represent you on these kinds of issues, and you really should consider getting a consultation. No one in this kind of forum can actually review the entire situation and understand what's going on. Best wishes to you and please accept my condolences on the loss of your father.  ... Read More

No, the executor of the Will cannot keep your inheritance.  Just the opposite.  The exector of the Will has to distribute a decdedent's property in accordance with terms of the decedent's Last Will & Testament.  Here's an article I found online which you might find helpful, https://www.findlaw.com/estate/estate-administration/what-does-an-executor-do.html#:~:text=The%20executor%20is%20the%20person,taxes%20comes%20from%20the%20estate. Best regards, Jonathan R. Ratchik, Esq. Kramer, Dunleavy & Ratchik, PLLC 61 Broadway, Suite 2220 New York, NY  10006 (212) 226-6662 www.kdrpilawyers.com  ... Read More

You will need a skilled probate/estate/trusts lawyer If you are the beneficiary of a trust, you can, if you believe you are being defrauded, demand an accounting. Note, while you may in mentioned in the trust, it does not necessarily mean that the trust wasn't created to exclude you.   Good luck to you.... Read More

You would first have to petition the court for authority to administer your son's estate.  Then take that authority to pursue the assets that rightfully belonged to him.  If your son has a trust or will, it should be probated and suit filed against his father for an accounting, etc.... Read More

A lot depends on the type of trust and the purpose for which it is created. If your mother created an irrevocable trust 20 years ago and was trying to keep the assets held by the trust out of her estate for estate tax purposes, then no, she should not have been the trustee of that trust or a beneficiary, because if she were it could defeat the estate tax sheltering purpose of the trust. However, if she was setting up a revocable trust for other estate planning purposes, and she was to be the main beneficiary of the trust during her lifetime, then she definitely could have been her own trustee without it creating any kind of legal or tax problems. As for her then-attorney's statements that a beneficiary of a trust could not be the trustee- that's not really true, and it wasn't true 20 years ago, but it was the more conservative way to plan. If a beneficiary of a trust is also the trustee of the trust, then the beneficiary's ability to handle the trust and make distributions to the beneficiary or his own dependents needs to have certain limits placed on it (I don't have nearly enough room here to detail all of that) OR the trust will effectively end up treated as if it were the beneficiary's own property for various purposes, including estate taxes, income taxes, and creditor protection purposes. But with the right limits in place, yes, a beneficiary can be trustee of his own trust and still accomplish many of the benefits the trust might be intended to provide. However, if creditor protection is really critical, it may be desirable for the beneficiary not to be his own trustee, and in some cases, such as one where the beneficiary is disabled or needs protection from himself for some reason, then you would not want the beneficiary to be his or her own trustee.   The rules have not changed in this regard in the past 20 years. But your mother's old attorney may have been much more conservative (or perhaps not as well-informed) as her new attorney. She could also be misremembering his advice.    Trust laws do vary from state to state, although there is a trend towards making them more standard, but the rules I've discussed above generally aren't that different from state to state.  ... Read More

The answer to your question is Maybe. A lot depends on how the trust is written, who created it, where the assets it holds come from, what the lawsuit relates to, and what state laws apply.   For example, in Georgia, a person cannot create a trust for her own benefit, move her own assets into it, and then claim that the assets are not subject to her creditors and judgements against her. However, a person's parents, for example, could create a trust for her benefit, move their own assets into it, and use a provision generally called a "spendthrift clause" to protect the trust's assets against most of the beneficiary's creditors and many kinds of judgments. But that protection is not perfect, the degree of protection differs from state to state and both the law of the state where the trust was created and held and the state in which the beneficiary lives can affect the protection.   Again using Georgia as an example: If the beneficiary of a trust created by the beneficiary's parents with the parents' own assets and including a spendthrift clause starts a business, runs up personal credit card debt associated with that new business, and then loses the business, resulting in a lot of credit card debt that she can't pay easily, the credit card lenders likely will not be able to touch the assets in the trust created by the beneficiary's parents. Similarly, if the beneficiary gets divorced, her ex-spouse likely can't touch the trust assets and they won't get divided up. However, Georgia does not protect against alimony award or child support award claims, so if the beneficiary fails to pay child support or alimony, the children or the ex-spouse who are owed may be able to get assets out of the trust to pay the amounts owed them. And, Georgia does not protect against tort judgment creditors, so if the beneficiary gets drunk, drives home, hits and kills someone else, and gets sued, the person suing her may be able to collect an unpaid judgment from the trust's assets to some extent.   If you are the beneficiary of a trust, or if you want to set up a trust for someone else, I strongly recommend getting an experienced estate planning attorney to help you. The attorney can help make sure that any trust is as protective as possible.  ... Read More

It sounds like your uncle was told the right thing. He needs to be appointed executor in order to complete the process. There is no way around this requirement.  It is unfortunate you need to complete this process for only $2,000, but your choice is do nothing and forget the money, or take the necessary steps to complete the process.... Read More

While an attorney is not mandatory to prepare a Power of Attorney or a Living Will, it is strongly recommended.  The expense easily survives the cost benefit analysis as both documents will assure your needs are met, if you are incapacitated.  Moreover, the POA can be used for day to day business, at your option. However, based on your comment that you want to be prepared for your death, neither document serves that purpose.  To the contrary, the POA and Living Will only provide assistance during your lifetime via an agent for the former and via health care providers for the latter. Perhaps you are seeking a Will.  If so, an attorney can advise you regarding the options and can properly prepare the documents so that your will, hence the name, will be carried out upon your death.  Both the Will and the POA must be notarized. I trust this answers your question, and if you live in the Delaware Valley, do not hesitate to call or email me on a free initial basis.   Best Regards,   Matthew R. Nahrgang, Esquire 35 Evansburg Road, Ste 400 Collegeville, PA 19426 (610) 489-3041 o (610) 489-3042 fax nahrganglaw.com     ... Read More

As the Trustee, you should file a Notice to Creditors in the local newspaper to begin the creditor claims period.  This essentially creates a deadline for creditors to file their claim.  It is also generally accepted in the legal industry that you have a moral obligation to use the trust assets to pay for his expenses. That being said, you can certainly make every effort to negotiate and pay less.  ... Read More

Under Michigan law, a Trustee is required to provide notice to all of the trust beneficiaries within 63 days of them accepting their responsibilities.  That notice ideally would include an initial inventory of assets and a description of what your beneficial interest is.  For instance, do you receive certain property or a % of all of the trust assets. If you are being provided a check and being asked to accept it as a distribution without anymore information, I would hesitate to do that without consulting with an attorney and providing more information. I hope this is helpful!... Read More

Hello.  As a beneficiary of a Trust, you are entitled to certain information as required by Michigan law.  The Trustee of the Trust is required to notify you within 63 days of their appointment that you are a beneficiary, provide a description of what your beneficial interest is, and should provide an inventory of all of the assets.   Generally, you should also be entitled to receive regular accountings and/or reasonably request them.... Read More

If your sister only has Power of Attorney, as opposed to being appointed your guardian, you may revoke that power at any time, and I encourage you to do so immediately.  Additionally, if your sister did not act in your best interest, she may be liable for any damage she caused for breach of fiduciary duty.    I trust this answers your questions and, if you live in the Delaware Valley, feel free to call or email me on a free initial basis.   Best Regards,   Matthew R. Nahrgang, Esquire 35 Evansburg Road, Ste 400 Collegeville, PA 19426 (610) 489-3041 o (610) 489-3042 fax nahrganglaw.com... Read More

Please accept my condolences on the loss of your father.   In preparing an estate tax return (IRS Form 706), all assets in which your father owned an interest at the time of his death would generally be listed on the return. If the trusts were created under the terms of his Will using assets he owned in accounts at his death, then you don't really list the trusts on the estate tax return (except as beneficiaries), but you would normally include the assets he owned at his death that go into the trusts as part of his gross estate. I can't tell you whether the trusts you actually have should be listed on an estate tax return or not, though, because there are a lot of factors that would go into that determination and I don't have access to all of that information here.   Your post also raises a larger issue that I want to address: You do not file an IRS Form 706 to "close out" an estate; at least not in the typical sense of "closing out" an estate. If an IRS Form 706 is required (and from your post I cannot tell you whether an IRS Form 706 was required for your father's estate or not), then filing it and waiting for it to be accepted and a closing letter issued, or for 3 years to pass since it was filed, is part of the estate administration but it is far from the last thing you would do. The last tax return typically filed before an estate is closed out (after the administration has mostly been completed) is an INCOME tax return (IRS Form 1041), NOT an estate tax return. It could be that I'm just not understanding exactly what you have done and are trying to do now, and of course I have nowhere near enough information about the estate to know what you should have or may already have done, but it sounds like you might be trying to do the wrong thing.   If you do not have a probate attorney helping you with your father's estate, please consult one as soon as possible before you file any estate tax return on IRS Form 706. You may be wasting time and money filing something you don't need to file, and you may be overlooking steps that you should be taking. This kind of forum is not designed for anyone to be able to tell you what you should actually do in any given legal situation- that requires a lot more information than can or should be discussed in a public forum like this one.   Best wishes to you.  ... Read More