My mother and stepfather had a living trust, They were married for 20 years. My mother has since passed away and left her assets to my stepfather, but upon his passing my brother and I (whom are beneficiares in the trust ) were to split the estate. My stepfather now has remarried and is having a baby of his own. How do my brother and I make sure my mothers portion of the estate goes to us and not his new wife and child. What do I need to do ensure my mother's wishes are fulfilled?
If you have a copy of the living trust agreement, please bring it to an experienced estate attorney so that he or she can review this document. The attorney can advise you as to you and your brother's interest in the trust and what you can do about securing the same. Specifically, I hope for your sake that there is an independent trustee managing the trust and that the trust became irrevocable upon your mother's death. Good luck to you.
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Estate Planning Attorney
The trust needs to be reviewed. Hopefully your mother's share is held in an irrevocable trust for your father. If her share passed to a trust that is revocable by him then he is free to change the terms of the trust. When a trust, or a portion there of , becomes irrevocable as a result f the death of a settlor/trustor, the beneficiaries of the trust and the heirs of the decedent (as a child of your mother you and your brother are her heirs) are entitled to a copy of the terms of the trust. If you do not already have a copy (the trustee should have notified you of your right to request one within 60 days after your mother's death. [See link] Ask the trustee (it may be your stepfather) for a copy of the trust. You can then review it with an attorney. If he refuses to give you a copy then consult with an attorney and have that attorney write a letter setting forth your right to a copy of the trust.
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I agree that it would be ideal to have an attorney review the trust for you. It would be great if you have a copy of it; but requesting a copy from your step-dad could be a sensitive matter, especially if the trust language is just fine as it is but could be changed (if, for example, he got annoyed with your request to see the trust). Another option, if you don't have it, is to contact the lawyer who drafted it to see if you could obtain a copy. But an attorney needs to review it before your question can be answered well.
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Attorney Symons is correct. The trust needs to be reviewed. Your mother's interest could have gone directly to your Step-Father or held in trust for his lifetime. If it was to be held in trust, you need to ensure that the trust for your step-father of your mother's assets was funded. Provided he doesnt have a general power of attorney (which would be odd for a second marriage) the funds should then be protected although you will want an account of the trust to be sure. THIS SHOULD NOT BE DONE BY you. You should have an attorney to make sure the right questions are asked and that you get the right answers.
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The key is the terms of the Living Trust and whether or not your Stepfather gets access to all the assets until he dies or at the time of Mom's death was a portion of the assets set aside solely for your benefit. In other words, if stepdad has right to access all funds during his lifetime for whatever uses he sees fit vs. the terms of the trust putting shackles on him with respect to some/all of the monies earmarked for you (a factual question?) then this is the key to unraveling your rights to do anything at all. If your stepdad is in fact a trustee with fiduciary duties to you for a portion of trust assets then you may have a claim against him if he squanders what was supposed to go to you.....the devil is in the details of the agreement. Sorry I can't add more absent reading the document itself.
This is not intended to be giving legal advice and this topic can be a complex area where the advice of an attorney should be obtained.