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Can my mother change a family trust will after my father has passed away

San Luis Obispo, CA |

Can my mother change a family trust in a will? who can contest it? If it's contested will they be excluded from the will?

Attorney Answers 6


  1. You will need to look at the terms of the trust. Call a lawyer and have him or her review the trust.

    Marcus W. Morales, Esq.
    115 W. Mission St.
    Santa Barbara, CA 93101
    www.marcusmoraleslaw.com
    (805) 845-5405

    All content posted on marcusmoraleslaw.com and avvo.com is for educational purposes only and should not be relied on as legal advice. Any information conveyed to marcusmoraleslaw.com, avvo.com or by telephone to the Law Offices of Marcus W. Morales does not create an attorney-client relationship until an attorney-client fee agreement has been entered into and signed by both parties.


  2. I assume that what your mean is that there is a trust established pursuant to the terms of your father's will. To some extent it will depend on the terms of the trust; it may be that as to your father's share of the community property the trust is now "fixed." But as to the share of the estate that belongs to your mother, it may be changed. You really need to consult with a Probate/Trust lawyer to determine your mother's rights.

    DISCLAIMER: The response herein is not legal advice and does not create an attorney/client relationship or any right of confidentiality between you and the responding attorney. These responses are intended only to provide general information about perceived legal issues within the question. Each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer is not a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.


  3. The trust document must be reviewed before you can get a totally
    accurate answer. Otherwise we are all guessing at the answer.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  4. Attorneys Morales and Tigerman are correct. In order to properly answer your questions, the trust should be reviewed by an attorney. The terms of the trust are controlling as to whether it can be amended or not following the death of the first spouse to die. For example, certain trusts provide that a trust may be amended or revoked during the life time of both trustors but cannot be amended, at least to the predeceased spouse's share, when that spouse dies.

    As to whether a challenge to the trust is considered a contest for purposes of disinheriting the challenger also depends on the terms of the trust and the exact nature of the challenge. Again, you should discuss this with an experienced trust attorney.

    Disclaimer: The above answer does not create an attorney/client relationship. My responses are intended to provide general information about the question posted. I am licensed to practice in the state of California. The information provided on this site should not be used as a substitute for conferring with or hiring a competent legal advice from a licensed attorney that practices in the subject area in your state.


  5. Your question is not entirely clear, but I am going to assume you are saying that you dad created a trust through his Will. That would be a testamentary trust and thus really created by order of the Probate Court. If the Trust provisions gave your mother a limited or general power of appointment the provisions could be changed pursuant to that power.

    Contests in California are a different issue. They are strictly construed. Contest of one document is not necessarily a contest of another document. The instuments have to be carefully reviewed as well as what action you propose to take. This should be done by an attorney with knowledge of the area (trust or probate litigator - dont get just any litigator. This is a specialized area).

    If your parents did a joint trust while alive, or your dad had his own living trust, the terms of that trust will provide your mothers rights of revocation, amendment or otherwise changing its provisions.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.


  6. Not to sure if you are asking about a revocable trust or a will here as the two documents are entirely separate and distinct and require two totally different processes to execute. In order for someone to be exclused from a will or trust there must be explicit language in either the will or the trust that disallows this and if the contest is not successful then the person contesting will not receive anything from the estate. Also, generally, a person can change a trust or a will at any time prior to their passing. Once they pass, the trust or the will cannot be changed.

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