Not trust Mothers lawyer. For 30 years he named himself as trustee. Last year mom wanted my sister and I to be trustee. The paperwork (11th Amendment) does not list the 1st complete restatement. It only lists the 2nd complete restatement, and the 3rd restatement which is the 11th Amendment.
It seems odd to me, that the 1st restatement is not listed. Should I be concerned about this? I would like a clean trust redrawn, but my mother insists she trusts her lawyer. I am in a bind. Is it important for the 11th amendment, where my sister and I are listed as the trustee, to list all restatement, including the 1st restatement?
This is one of those times, that if your mother is capacitated and willing, you should encourage her to take advantage of the free consultation that many law firms, including my own, provide. You can find an experienced attorney through this website or FloridaBar.org. You may be right and it is time to take all the amendments and restate the entire trust. However, without showing an attorney the entire trust document, as is, there is no way to indicate specifically as such. Likewise, as this is your mother's trust, she is the one who must initiate action on her behalf, if she retains that ability under the document. Kudos to you for considering these issues while your mom is still competent to make decisions and Good Luck with your endeavors!
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Generally speaking, a Restatement of Trust revokes all previous Trust documents (the original trust, amendments and restatements). So, the 3rd restatement revoked all the previous restatements. Amendments dated after the most recent Restatement would amend that Restatement. I hope that makes sense and answers your question. Remember, this is your mother's Trust and she is not obligated share its contents with you or your sister.
If your mother is competent and she trusts her lawyer, you are treading on very dangerous ground by questioning your mother's judgment. Heed the advice of my colleague and recommend that your mother obtain a "second opinion," of sorts. However, if your mother reacts negatively to your suggestion, you may run the risk of her questioning the wisdom of nominating you as trustee. Moreover, it is unclear whether your mother currently serves as the trustee of this trust. You mention restatements, so the trust must be revocable. If that is the case, then your mother is likely the trustee, and the lawyer was only a successor trustee, who would not be the trustee unless your mother no longer could serve in that capacity. Nevertheless, there are significant ethical issues regarding a drafting attorney serving as trustee on a client's trust, issues that I doubt the lawyer failed to disclose to your mother. Moreover, what has the lawyer done to cause you not to trust him? Contrary to what you say, the lawyer is not in a position to name himself to any position, and, if he did, he would need to navigate through the ethical quagmire that such a scenario entails. I think you might be over-reacting simply because your mother trusts the lawyer about things he knows far better than you or your sister might, but she loves you just the same. In addition, if this lawyer has been serving your mother for 30 years, you probably owe him the benefit of the doubt. If you respect your mother, her decision to stay with the same attorney for three decades is certainly worth a gigantic amount of credibility for him. In other words, respect your mother's choices. Incidentally, it is irrelevant to the enforceability of a trust amendment whether it recites the history of the restatements and amendments. The inclusion of that information is purely for, shall we say, informational purposes only, and does not affect the amendment's validity. Nonetheless, I might advise a client who had so many restatements and amendments to clear out the weeds as you have suggested, but it certainly would be up to the client, and since I know very little about the case, I would defer to the professional your mother has trusted for 30 years.
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You can't. It is your mother's trust. As long as she is competent to do so, she can do whatever she wants with her trust. The most recent restatement revokes all prior restatements and all other prior amendments. This 11th amendment naming you and your sister as trustees overrides any previous document naming someone else as trustee. As long as your mother does not execute another amendment removing you as trustee and renaming the attorney as trustee, you are the trustees.
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