My father passed away Dec. of 2009 and left me as the Trustee for a trust containing a condo, some cash and a vacant lot. The trust was to be split equally among my brother, sister and myself. I have sold the condo and wrote my brother and sister a check last week. My brother is mentally handicapped and receives welfare from the state of California. My sister, (who is devious and who I am estranged from) asked me to make his check payable to her because they do not want him to lose his welfare benefit by getting a large check. She said she would give him money when he needed it. I suggested that I write the check to my brother and that he sign it over to her. She said that would leave a paper trail and the state would discover his money. She said he does not want me to contact an attorney.
Sarah, thank you for this information. She is NOT his legal guardian.Apparently he doesn't have one. If I draw up a statement whereby he gives up his right to the funds and asks for the check to be made out to her and have him get it notarized, would I be covered from a legal standpoint?
First of all, if the Trust says to distribute the money to you, your brother and your sister, you as Trustee have a responsibility to do that. Making a payment to another individual or failing to pay your brother is improper and you could get in legal trouble for that. And if you are doing that to avoid the State of California finding out, that could be fraud against the State and you should obviously avoid that.
That being said, if your brother is actually handicapped in a way where he cannot take care of himself, he likely has a legal guardian or conservator. If he does, you should probably make the payment to that person on his behalf. This could be your sister. But, prior to disbursing a payment to someone claiming to be the legal guardian or conservator, you should obtain and keep a record of written proof, no matter who it is.
The above answer is not "legal advice" as specified under any pertinent rules governing the Professional Responsibilities of Lawyers and should not be relied upon. An attorney-client relationship has not been established by virtue of this correspondence. Legal issues are often complex and involve local laws and facts which may not be effectively communicated without a complete consultation.
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I rarely say an attorney is needed but this is one of those moments. You as the trustee can hire an attorney for the estate in order to legally distribute the funds. What you
need is some a strategy and a plan based on sound legal advice.
Although the above response is believed to be accurate, it should not be relied upon as any type of legal advice because the information provided is incomplete. It is intended to educate the reader and a more definite answer should be based on a consultation with a lawyer. No attorney client relation is formed with me without a written contract.
Good Luck starts with a strategy and a plan.
Robert J. Suhajda, MS,CPA
17721 Norwalk Blvd. #43
Artesia, CA 90701
Former financial auditor and controller. Admitted to US Tax Court, Income Tax, IRS representation, Fiduciary income tax returns, Estate and Gift tax returns,
Homeowner Association Strategist.
As a strategist, I analyze and integrate the operations, reserve study, budget, and financial statements into a unitary plan for 1 – 5 years, utilizing my experience as
a former treasurer and vice president of a homeowners' association and corporate
controller and auditor, to minimize homeowner association dues.
The trust instrument may provide some flexibility for you, in that it may allow you to distribute the money to someone else (like you or your sister) for his benefit or hold it in trust for his benefit. If the money amount is large enough, it may make sense to petition the court to establish a special needs trust with the funds to allow him to keep his benefits. I'd recommend having an attorney with special needs trust and government benefits experience review the trust to see what your options are. You can protect your brother without creating unnecessary problems or liability for yourself.