My client's husband was an attorney and he drafted their trust. He has since passed away. He set it up allowing the creation of a survivor's and bypass trust, but he did not mandate it. The wording appears to allow the survivor to choose. They have no children. Is she going to be forced into creating a survivor's trust? Or can she keep this trust as is? Or my understanding is she may have to hire an attorney to petition a change.
And you are.....WHO?
An Estate Settlement Attorney can review the document for your friend, and advise if this can be done by a statement that allocates assets to each.
And as a Friend, you would WANT her to have good advice about this issue, as it can have adverse tax consequences.
An Attorney consultation ~ with candor and confidentiality ~ can result in specific legal advice about your situation (and its documents) based on the statutes and case law. Why? Because this e-response is for information but is not construed "legal advice" for any particular case or client, just an explanation in response to what you posted. So this response creates NEITHER an Attorney-Client relationship NOR an Attorney-Client privilege ~ because everything is public, for all to see. For specific advice about your particular concerns or situation, consult an Attorney as a Fiduciary to you, with that 1-way Duty to you. This e-response is neither an advertisement nor a solicitation.
Can’t say without reviewing the trust. If it is a disclaimer into bypass, or other similar, it may not be mandatory. If it is mandatory, your are correct that there are court reformation options, and even the possibility of “decanting” under new law. Best advice would be to refer your client to any experienced trust and estates specialist to analyze, and recommend best course of action.
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