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Can you change an A/B Living Trust to a fully revocable trust?

San Diego, CA |

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?

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Attorney answers 4

Best Answer
Posted

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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Asker

Posted

Thank you for an excellent response. The A/B trust for parents was mandatory for subtrusts to take place. Dad's attorney, to the contrary, wrote up a Certificate of Trust that states a fully revocable trust, and nothing was done for mom. My attorney, on examination, says dad and his attorney are in breach, and to put dad's attorney "on notice," but don't want to risk disinheritance. Dad is very careless with finances, and can't do much with a power of attorney until he's incapacitated. Then, it will be too late.

Posted

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.

Good luck.

The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, 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. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.

Asker

Posted

We have been warned that dad could bump us off, so not rock the boat. Court action too expensive. Legal counsel sought instructed put dad's attorney "on notice" for this breach, but haven't done yet. We'll have to get another opinion. Thank you.

Charles Adam Shultz

Charles Adam Shultz

Posted

I wouldnt advise putting the "attorney on notice". The attorney will share anything you do with your dad. I agree with the prior warning. This is a very dicey situation.

Posted

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.

Asker

Posted

We're simply told a breach has occurred, regardless of tax consequences, and there were none. Mom passed in 2010. A copy of dad's trust was examined by an attorney and clearly indicated subtrusts/splits need to take place. Period. Dad is trustee, and no such changes to convert to revocable took place while mom was living. Not sure what to do. Thank you.

Amanda Marie Cook

Amanda Marie Cook

Posted

Who is telling you that a breach has occurred? As Mr. Schultz is pointing out, does the breach have any actual impact on anything (in reality or potentially?) It is, of course, important to split the trust and avoid "stale trust" funding and its INCOME tax implications. The trustee is required to abide by the terms of the trust. However, depending on the amount at stake and the terms of the trust, it may not be worth fighting at this point.

Posted

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.

Asker

Posted

This was no mistake, as dad refused to do what was necessary. There isn't a new trust to compare with the original, as we know. If there is one, we can't see it until after dad passes. A difficult situtation, since dad is elderly and careless with finances. Thank you.

Christine James

Christine James

Posted

I would start researching title to sny real property. You and you siblings may want to consider filing a petition with the court to preserve your mothers share if you fear your father will spend it all.

Asker

Posted

Agreed, thank you.