Parents had an A/B living trust. Mom passed. There was supposed to be subtrusts created, but this never took place. Mom's share of assets was to be 50% irrevocable, and dad's the other 50%, revocable. It was detected that dad has a fully revocable trust via a certificate of trust document by his attorney. How do we inform this attorney this is incorrect and a breach?
Contracts / Agreements Lawyer
As stated elsewhere, this is a delicate issue. While Dad is the current beneficiary of the B trust and I assume, the sole Trustee, he is not entitled to "do whatever he wants" with the assets of the B trust. Most likely, he is entitled to all of the income from the B trust and allowed to withdrawal principal from the B trust for his "health, education, maintenance and support." If Dad took all the trust assets and formed a new trust, Dad breached his fiduciary duty to you (and the other remainder beneficiaries of the B trust). Typically, the surviving settlor/grantor is required to spend down the assets of the A trust before dipping into the assets of the B trust.
Please also note that Dad may have a testamentary limited power of appointment over the assets of the B trust. Often, the surviving settlor/grantor is given the ability to "appoint" the assets of the B trust among his/her descendants. In other words, not only could your Dad cut you out of the A trust (because he can do whatever he wants with those assets), he can also cut you out of the B trust (assuming there are other descendants alive.)
Without understanding all of the family dynamics, you should try to discuss with your Dad. If that's not possible, I suggest a professional, matter-of-fact letter to your Dad's attorney requesting a copy of the trust (you should have been provided a copy along with the required statutory notice under Probate Code Section 16061.7) and suggesting that you belief your Dad may have inadvertently breached the trust.
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You should discuss this with your dad first. Your mom's share of the trust was to be funded into the B Trust. If not done, then there is a claim against your dad. NOTE - you would be fighting with your dad and he can change his trust to cut you out of his half. This is a very delicate situation. Because the B Trust is irrevocable, you have the right to seek assistance of the court, if necessary to fund that trust.
Proceed with caution. You should hire a skilled attorney to help guide you. Rosemary Meagher-Leonard and several others on AVVO are in the San Diego area.
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Estate Planning Attorney
I am sorry for your loss. Your attorney will need more information to help you, such as: When did your mother die? Do you have a copy of the trust? I assume your father is trustee? While both spouses are living they may change the A-B trust into a regular, fully revocable trust. However, after one spouse's death, the split is typically required by the document. It is important to know what the implications of not funding the trust appropriately are, including tax issues.
THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. The answer to question does not create an attorney-client relationship or otherwise require further consultation. Mrs. Cook is licensed to practice law throughout the state of California with offices in San Diego County. She is authorized to handle IRS matters throughout the United States, and is also licensed to practice before the United States Tax Court. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, 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.
Estate Planning Attorney
This may or may not be an issue and you should have both trusts reviewed, preferably by an independent attorney, to see if the new trust covers all property or just your father's 1/2. It is also important to look at how all of the assets are currently titled. This may be able to be fixed fairly easily depending on your father's intent and willingness to follow the terms of the original trust. If this was an honest mistake, it should not be difficult to fix but there are a lot of issues that need to be reviewed in their entirety to properly advise your family on the matter.