Parents married 60+years. Father took most of the estate into a trust and died 4+ years ago. Very little assets available to mother. One son manages the money but will not give mother money from fathers part of estate. Want mother to get her fair share
Florida is not a community property state for purposes of divorce. It is a no fault state and property acquired during the marriage is divided in the case of a divorce equitably. In this case, it sounds like your father did some estate planning while he was still married. He would not have had the power to remove assets from your mother that were rightfully hers just by drafting documents. You mother may have to file an action to get access to what is rightfully hers. I would contact an estate planning and probate attorney in the state in which the trust was created or your father's death occurred. The facts as you have presented them sound extremely unfair to your mother after 60+ years of marriage especially if they were still married when your father passed.
1/3 of the estate is obtained through what is called the "elective share". There are a few statutes which go toward the idea of elective share and the scope of it will be beyond this opinion. However, if most of the assets were in a trust, there may not be a estate to which the elective share attaches to. The mother must sit with a lawyer of her choice to review all documents to determine if she has a possibility of obtaining the elective share at this time.
Alejandro R. Lopez, Esq.
Law Office of Alejandro R. Lopez, P.A.
4465 Edgewater Dr.,
Orlando, Fla. 32804
Ph.: (407) 649-1404
E-mail: [email protected]
I agree with both of the other responses. What is unclear to me is HOW your father took control of these assets and placed them in trust. The answer to that question may dictate how you proceed. If he removed money from joint accounts, that is one thing, and maybe little you could do about that. But if he signed your mother's name to documents or persuaded her to do so, and she did not understand what was being done, or if he signed her name while acting under a Power of Attorney form, then these actions could likely be set aside in court. Once you determine what was done, I would meet with a probate litigation attorney in the county where your parents resided to see what your mother's options are.
There may be a number of options available, but it is not clear, based on the limited facts provided.
*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.
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