My brother left his estate to his minor daughter and I am her trustee. Can the divorced mother get these benefits claiming that the father did not pay child support?
The first question is did the brother have a Will or a Living Trust. If it was a Living Trust it passes outside of probate and unless there was otherwise any need to open probate, the mother would have to either open a creditor’s probate estate or bring a citation against the trust, or a separate action would have to be brought against trustee in chancery to recover any money from the Trust. The language of the Trust will determine if it is responsible for the debts of the brother, though this is pretty standard. However, as a practical matter, bringing a claim against the trust can be expensive and since the claimant seldom will be able to see the Trust prior to initiating any lawsuit.
If the brother created the trust as part of his Last Will, then the mother's claim can go against the assets. The mother would be a creditor of the estate like any other, and certainly would have a claim for past due child support. As with any other probate matter, the general rule is that the creditors get paid prior to any distribution to the beneficiaries. The Trust for the daughter would be a beneficiary and therefore would only be funded after the creditors were paid.
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if there is a child support order and if your brother did not pay all he should have, then the mom can make a claim against the estate for the unpaid support. also, she may make a claim against the estate for future child support.
check the divorce judgment to see what it says about life insurance to insure the support. that may prohibit her from getting future support if the life insurance exists.
take all the divorce papers to a lawyer.
I am not at all sure how the child support is relevant? Your daughter's estate is HER estate and you are only the trustee. The fact that your daughter's father did not pay child support has absolutely no relevance. If you are in need of funds to raise your daughter you will have to prosecute her father to get him to pay child support or you can Petition the probate court for expense for your daughter. You will have to consult with a probate attorney for more specific advice.
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If I may restate the facts slightly: The brother has died leaving benefits for his minor daughter in trust. The brother had named his sister, the child's aunt, as the trustee over the trust for her niece's benefit.
This is really a probate question. However, generally, such a trust is protected from the reach of the brother's ex-wife, assuming that it was properly drafted and funded. The usual concern is that the ex-wife will convert funds to her own use and not use them for the benefit of the child, however the probate process provides certain protections against these efforts as well.
Most divorce settlement decrees contain certain waivers against estate claims. If the brother had an estate that encompassed more than the the trust, then the provisions in the settlement agreement may be relevant for other claims.
The information provided here should not be construed to be formal legal advice. The provision of this general advice does not create a lawyer-client relationship. Persons with legal questions are encouraged to seek independent counsel for advice regarding their individual legal issues.
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