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Can my stepmother change my fathers Will and his Trust, if she is the executor on the estate?

Los Angeles, CA |

We are in California. They were married for 3 years when my father died. He left her most of his assets but he specified one piece of income property was to be for his adult children. He had a Trust, but I am not sure if it is a revocable or irrevocable Trust. He made her the executor of his estate and she seems to be trying to take everything. We have not been able to see the Will, and has changed lawyers from the one that set up the Will and Trust for my father. She is acting very secretive and we don't know what are rights are or what to do.

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Attorney answers 6

Best Answer
Posted

Mr. Perry's answer really could not be better.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/

Posted

Your stepmother could not change your father's will. The terms of the trust will dictate whether she has the power to change it.

If you are a beneficiary under the trust, you are entitled to a copy of the trust document. You may need to hire a trusts and estates attorney to write to your stepmother and ask for a copy, and to make sure that you get any share of the estate to which you and your siblings are entitled.

You should not delay acting on this.

Asker

Posted

Thank you.. he passed away 36 days ago, and it heard that she doesn't have to file the will for 60 days so we won't be able to see it for another month. I also heard that, as his wife she can hold everything in the Trust and not transfer the deed to us until she dies. Is that true?

Charles Richard Perry

Charles Richard Perry

Posted

I am sorry to hear of your recent loss. There is no law saying that you must wait to see the will or the trust. The trust document controls what happens to the property. If the document does not give the wife the right to hold the property but instead requires its distribution , then she has no right to hold it. Again, you should be contacting an attorney directly to help you. Navigating the probate court in a disputed matter takes an experienced attorney.

Asker

Posted

Thank you.

Posted

Mr. Perry is correct. One additional point. If it has been more than 60 days since your father's passing, your step mother is in violation of Probate Code Section 16061.7 which REQUIRES her to provide copies to beneficiaries within 60 days of the likely irrevocability of your father's trust (usually irrevocable at death). If she is being secretive now, that is not likely going to change unless you force her hand. A letter from an attorney reminding her of her obligations usually does the trick.

Asker

Posted

He passed away 36 days ago, so does that mean we have to wait another 24 days to get a copy of the Will and see how the Trust is set up, or is there another way to find out sooner?

Christine James

Christine James

Posted

I would have an attorney write a letter to her attorney right away asking for a copy of the will and trust. Can she wait the entire 60 days, yes. However, if you wait and let the day pass, you would be waiting even longer. Another suggestion - have you asked the attorney who drafted the will and trust for a copy? If you can show a death certificate they MIGHT give you one.

Asker

Posted

I have asked and although she is sympathetic she isn't able to give us a copy per my step mothers instructions. She is definitely doing something shady, but I don't know what... its obvious by her secretive and separative stance.

Christine James

Christine James

Posted

Making it even more important that you assert your rights and let her know that you are watching. Many attorneys will work with you if you have financial restraints that make it difficult to afford an attorney but it will be less expensive to keep something from happening now than it would be to undo something that happens after the fact. Good Luck.

Asker

Posted

Thank you Christine!

Posted

I am sorry for your loss. You have remedies but to exercise them you need to consult and retain an attorney to review the Will and declaration of trust to advise you. If you have not seen the documents, I wonder how you know that one piece of income property was to go to your father's adult children. The trust would become irrevocable upon your father's death. Since the trustee has an attorney it should not be difficult to "get to the bottom of this" in fairly short order once you retain counsel.

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Asker

Posted

My father told us what the will said, and another family member who helped him set it up also told me that the building is meant to go to the children. He was there when the will was written up and was the executor at one point.

Michael Raymond Daymude

Michael Raymond Daymude

Posted

If he is no longer the executor, perhaps a new Will was drafted. You need an attorney to figure this out. Good luck.

Posted

You have a right to a copy of the Trust. If the property was left in trust for the adult child, then its most likely in an irrevocable trust following your dad's death. You can also demand an account of the irrevocable trust either under PC Section 16061 (information not an account but almost the equivalent) or PC Section 16062 depending on the rights in the trust.

You should seek out Trust Litigation counsel immediately.

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Asker

Posted

Thank you for your message. Can I demand that before 60 days have passed. I understand that she doesn't have to show it to us before 60 days. Is that right?

Michael Raymond Daymude

Michael Raymond Daymude

Posted

You may request a copy of the trust at any time -- provided you know who the trustee is. The 60 day period refers to the time within which, after certain events, the trustee must provide notification by trustee. See Probate Code section 16061.5. Do yourself a favor and consult counsel. You will get nowhere with this on your own and severely prejudice your rights if you fail to take timely action.

Charles Adam Shultz

Charles Adam Shultz

Posted

Actually, no, the Trustee has an obligation to give you the Trust. Failure to do so is a breach of fiduciary duty. The 60 is just a period to start the statute of limitation on contests. The period is the greater of 60 days from notice or 120 days from receipt of the trust. Dont let any time period run. Demand a copy of the trust immediately in writing.

Posted

The documents need to be reviewed by an experienced Estate Planning Attorney. There are a plethora of issues that could affect the validity of the document and its administration.

No legal representation exists by virtue of this answer. It is recommended that you contact an attorney directly for a more complete response.