Mother really wants her son to inherit her house and to be executor of her will. She doesn't understand why he can't do it if he can write letters--that it might be slower than needed, but he could carry out her wishes. Even if he is not the executor, she really wants him to get her house. What kind of trust would it need to go in? Thanks!
Being an executor is not the same as being a beneficiary. Someone in prison is just not the proper person to be executor. The executor is the one that administers the estate and being in prison is a very large obstacle in doing that. She can name him as a beneficiary of a trust or her estate without being named executor and that is the best way to handle the problem. A trust may be considered but you need to meet with an experienced estate planning attorney in a face to face meeting to determine what is best for the son and all concerned parties.
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Mr. Fromm offers you some very sound advice. In most of the states that I've bothered to check, convicted felons are disqualified by statute from serving as the personal representatives of estates. Even if mom did nominate her son, it's pretty unlikely that a Court would appoint him -- not because the job requires personal and physical attention, but because of his status as a convict.
This does not, however, have much bearing on mom's ability to pass along her property to her son at her death. A trust might be a useful tool, as it could install a fiduciary to see to the immediate hands-on needs of the house (maintenance, rental, etc.) for the period of time that the son remains incarcerated. But a trust is not necessarily the only or best option. If mom is as determined as she sounds, it's worth a couple of hours of an estate planner's time to sit down and receive some practical and experienced advice.
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Both answers are typically excellent. If the imprisonment is a temporary thing, it may not matter. If the Son is a felon, or in for a long time, he will not be appointed Executor. That does not mean he cannot get the assets under Mom's estate. Depending, again, on how long he is locked up, a Trust may work and it can be a Testamentary Trust, one set up by the terms of her Will. If she is concerned that he have THAT house, that is one thing but if she just wants him to have her assets generally, the house can be sold and the money held for the Son on his release as well. She needs to see an attorney though.
Use the AVVO.com web site to find an attorney in your area. In addition to that, contact your local bar association for referral to an attorney who specializes in this or talk to friends and neighbors to ask about an attorney they have used and liked. Often, but not always, the attorney will do an initial consultation free of charge. You will then be in a better position to determine what to do next. Best of luck to you!
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