Skip to main content
James Lee Parke

James Parke’s Answers

6 total

  • Change/Amendment to an existing Living Trust

    The trust is already established. How do I go about making a change as to the beneficiarias. Please advise. MM

    James’s Answer

    Mr. Fink is absolutely correct about having an attorney draft an amendment to the trust. If you are not happy with the attorney who initially drafted the trust, you can try another estate planning attorney.

    Changing beneficiaries in a trust can be extremely hazardous if not done by an experienced professional. A minor change to one provision of a trust can have a ripple effect throughout the trust, affecting multiple provisions. The do-it-yourself approach often causes more problems than it solves, because it can create ambiguity that leads to family conflict and lawsuits.

    See question 
  • Income for rental of property titled in Trust of deceased question.

    Rental income that was suppose to be paid in 2009 was not paid by tenant until 2010. Property was titled in name of the Trust. Owner died in 2009 and Trust account open with tax ID in 2009. Taxes owed and due on property paid using the rental inc...

    James’s Answer

    If the trustee/executor loaned their personal funds to the trust to pay property taxes on real estate owned by the trust, then the trustee/executor should properly document the loan (i.e. promissory note, etc.). As a trustee, you have a fiduciary duty to act in the best interest of the trust. Thus, the terms of the loan should be generous to the trust. Also, it would not be a bad idea to have the beneficiaries of the trust sign off on the loan through a waiver.

    Once the trust has positive cash flow, either from rental income or from the sale of property, the trust should pay off the loan that was made by the trustee/executor. You should visit a qualified estate planning attorney to make sure that the documents are drafted correctly, and that you have minimized your liability risk.

    See question 
  • Tax ID number was obtained for Trust in 2009. There was very little income designated to the Trust account in 2009 aprox $ 100

    Is a tax return needed to be filed for the income received designated to the Trust in 2009 since it was such a small amount for 2009? The Trust tax ID number was obtained and account opened so when property titled in the trust was sold the proceed...

    James’s Answer

    A trust must file IRS Form 1041 in one of three circumstances: (1) if the trust has any taxable income for the year, (2) if the trust has over $600 in gross income (regardless of taxable income), or (3) if the trust has a beneficiary that is a nonresident alien. For more information on these requirements, you should review the instructions to Form 1041.

    The answer of whether you need to file a tax return for 2009 will depend on the type of income. If any of the income is taxable, then you will need to file an income tax return for the trust. If you are unsure whether the $100 that you mention is taxable, you should talk to an accountant - which should be cheaper than hiring a tax attorney.

    As far as 2010 is concerned, the taxation of trusts is extremely complicated. Depending on the activity of the trust (i.e. whether any property is sold), you will probably wish to speak with a tax professional.

    See question 
  • How do I write a letter for a copy of a trust?

    I am the beneficiary of a trust. I need to request a copy of the trust, what should I include in my letter?

    James’s Answer

    As the current beneficiary of the trust, you are entitled (in most states) to a copy of the trust agreement. This may not be true if you are merely a contingent beneficiary (i.e. you are only entitled to distributions from the trust after the occurrence of some event, such as the death of a current beneficiary).

    First, you can request a copy from the grantor, if the grantor is still alive. The grantor is the person who established the trust. Second, you can request a copy from the current trustee.

    The letter should establish the fact that you are a current beneficiary of the trust, and specifically request a copy of the trust agreement, along with any amendments.

    In many states you will also be be entitled to an accounting, or a detailed set of financial statements detailing the holdings of the trust, and how trust funds are being distributed and spent.

    If the trustee is unwilling to provide the requested information to you, you may need to speak with an attorney who can give you more specific advice regarding the law in your state.

    See question 
  • Is my father(executor) allowed to not give the portion of the estate alloted to me?

    my aunt died, my father's executor. I was a beneficiary of it, there was a huge settlement case for the assests from my aunt's old boss. I would like to know if the original will that states that until i was twenty one, or had a degree, the distri...

    James’s Answer

    As a beneficiary of the will/trust, you have a right (in most jurisdictions) to view the will or trust instrument. As an interested party, you can request a copy of the will from the probate court that is supervising the administration of your aunt's estate.

    See question 
  • How do I obtain a copy of a trust. I am the trustee and it was never given to me. Is it recorded somewhere?

    How do I obtain a copy of a trust. I am the trustee and it was never given to me. Is it recorded somewhere?

    James’s Answer

    As a trustee, you not only have a right to the trust agreement, but you have an obligation to understand what it says. Trusts are not recorded in most states. The best way to get a copy of the trust is to contact the person that created the trust. If that person is no longer alive, try contacting the attorney or law firm that drafted the trust.

    Note that many trusts are created as part of a will (i.e. testamentary trusts), so there is no trust agreement, all of the terms are found in the will.

    See question