Will, living trust, house

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Single mother of a family with several adult siblings. Original will named all siblings equally. There is also a living trust naming all siblings equally. The house is titled in the name of the living trust and the living trust is recorded with the deed.

One of the siblings has passed away and the mother is increasingly in ill health. Due to long standing and recent issues including the funeral of the deceased sibling the mother wishes to disinherit two of the siblings.

One of the favorable siblings (executor) has gone to his "real estate" lawyer (not questioning real estate lawyers, just this one)and had the will revised to the mother's wishes. This lawyer insists that the living trust did not need to be revised even though the two siblings the mother wishes to disinherit are still listed as beneficiaries.

I'm not remotely a lawyer, but this sounds bogus to me. What would happen in this case where the will specifies a subset of the siblings as beneficiaries, yet the living trust includes all siblings as beneficiaries.

P.S. There are virtually no other assets other than the house.

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Depends on what state you are in. In Texas a living trust forfeits the state homestead protections against creditors and property tax exemptions/ over 65 freeze on property taxes. http://caselaw.findlaw.com/us-5th-circuit/1097886.html So check a local lawyer to see what the consequences in your state are.

Mom's dispositive instructions in her trust instrument govern those assets that are owned by the trust. As a practical matter, I have seen many people with mill-quality trusts that aren't funded. I'm not saying this real estate lawyer does or does not know what he is talking about, but to give him the benefit of the doubt he may have made a cursory review of her assets. If none of her assets are titled in the name of the trust, none of her accounts name her trust as beneficiary, and all her assets are held by her in her own name, then those assets shall pass through probate as determined by her last will and testament.

Not lawyerly advice, but practical:
Why create or leave an ambiguity you know about and that may be fought over after death, revise the living trust.

btuttle said:   Single mother of a family with several adult siblings. ...Hard to follow. Are the heirs her children or her siblings?

If the house is in the trust, and all the kids are named in the trust, sounds to me like there's work to be done on the trust. If there are no other assets, the will won't even matter.

IANAL, but if the trust owns the house, the terms of the trust dictate disposition of the house upon the mother's death. It's that simple, whatever the trust says is what will happen unless the house is put back in the mother's individual name (removed from the trust), then the will would dictate disposition. IMO, the best course of action would be to update her estate documents so that her wishes are carried out and so that the "favorable" children aren't forced to fight with the disinherited children.

ETA: In other words, go talk to an estate attorney.

ETA 2: Did the deceased sibling have children? Is the trust worded to include the deceased sibling's children or is it worded so that the trust would be split equally among the surviving children? Your mother should think about how she would like to handle the deceased sibling's share.

Interesting post and discussion. Some fodder for situations that can be easily encountered by others. Thanks FWF people!

To answer questions and review:

1. sesat: The house is titled in the name of the trust and the trust is recorded with the registry of deeds.
2. dcwilbur: This is an elderly single mother of several adult children who are the beneficiaries.
3. raringvt: The deceased sibling did have children and the trust would leave them that portion. However, they were well taken care of, so the grandmother wants to remove them also.

It does seem as the clear answers on point, do agree that the will does not override the existing terms of the trust and its properly titled property.

Thanks

I agree with you... It will be better to change the living trust as well depending upon your mother's wishes. It will be better to not leave any kind of ambiguity in this matter.

Not necessarily. In Louisiana there is something called Usufruct. Having done right of way work in several states see a lawyer! You never know what odd old English common Law, Spanish Civil Law or Code Napoleon issues can come up. You don't address whether or not her husband had a will probated or not. If he dies intestate or his will was not timely probated the heirs will all have an interest through him. Classic example of a standard screwup in states with Spanish land tiles. Florida, Texas, NM, AZ, CA, NV, Utah. parts of WY, MS, and AL. Colorado is a mixture of all three as it was a part of the Louisiana Purchase (odd land grants titled by the French and Spanish before 1803), Republic of Texas and the Homestead Act few 1862. All depends on how the US acquired the lands in the state or if they were already titled. Husband dies no will house is sold and funds to wife. She buys new home but 1/2 interest in new home belongs to children and their heirs share and share alike even if she goes to an English Common Law state because the funds are traced.

btuttle said:   To answer questions and review:

1. sesat: The house is titled in the name of the trust and the trust is recorded with the registry of deeds.
2. dcwilbur: This is an elderly single mother of several adult children who are the beneficiaries.
3. raringvt: The deceased sibling did have children and the trust would leave them that portion. However, they were well taken care of, so the grandmother wants to remove them also.

It does seem as the clear answers on point, do agree that the will does not override the existing terms of the trust and its properly titled property.

Thanks

A will is in addition to the trust for assets not held in the trust
This is known as a "pour over will".

They dont conflict, they complement each other- assets in the trust go to the people named in the trust , and other assets outside of trust go to people named in the will. These can be entirely different groups of people

nsdp said:   Depends on what state you are in. In Texas a living trust forfeits the state homestead protections against creditors and property tax exemptions/ over 65 freeze on property taxes. http://caselaw.findlaw.com/us-5th-circuit/1097886.html So check a local lawyer to see what the consequences in your state are.
nsdp said:   Not necessarily. In Louisiana there is something called Usufruct. Having done right of way work in several states see a lawyer! You never know what odd old English common Law, Spanish Civil Law or Code Napoleon issues can come up. You don't address whether or not her husband had a will probated or not. If he dies intestate or his will was not timely probated the heirs will all have an interest through him. Classic example of a standard screwup in states with Spanish land tiles. Florida, Texas, NM, AZ, CA, NV, Utah. parts of WY, MS, and AL. Colorado is a mixture of all three as it was a part of the Louisiana Purchase (odd land grants titled by the French and Spanish before 1803), Republic of Texas and the Homestead Act few 1862. All depends on how the US acquired the lands in the state or if they were already titled. Husband dies no will house is sold and funds to wife. She buys new home but 1/2 interest in new home belongs to children and their heirs share and share alike even if she goes to an English Common Law state because the funds are traced.
You do realize that both your "contributions" to this thread have absolutely nothing to do with the situation described in this thread?

No Glitch they just went over your head. There are are a number of shill lawyers that sell Living Trust Packages in states where they don't work in some/most/all cases. Big money for them, big headaches for those who bought the package. I haven't yet seen a posting as to what state OP's mother lives in. In Texas, you can get 4 different results ignoring In RE Shurley(which applies to Louisiana and Mississippi too) depending on the sovereign at the time of the original patent. Florida, southern Alabama, and Mississippi, New Mexico, Arizona, or California if the original grant is from the King of Spain, you have special title problems if you try to put the house into a Living Trust.


Unless you know exactly what state the house is in; you are likely, as 3 of the 4 most populous states can have restrictions,to have issues with the Living Trust. That is over 100 million people in just those three states, 1/3 of the US population or did you think about that. The generic answer may be wrong.



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