Changing a family trust

snipped-for-privacy@yahoo.com posted:

The standard advice related to "Living Trusts" (revocable living trusts) is that they become _irrevocable_ upon the death of the individual in whose name they have been created

-- i.e., the John Smith Trust becomes irrevocable upon the death of John, even though his wife Mary survives as one of the trustees. I'll be interested in seeing if there are any "Philadelphia Lawyer" ways around this that get posted. Bill

There's no way anyone here knows. Only a lawyer who knows what the trust's provisions are can tell you. If you want a second opinion, take it to another lawyer.

-- Phil Marti Clarksburg, MD

Normally when a trust is set up it can be amended or revoked by (but only by) the people who set it up. When those people die the trust is irrevocable because there's no one else around who has the power to change it. When a couple create a trust and one dies, that spouse's portion goes into a separate trust, and that part of the trust becomes revocable because it was his property and nobody else has the power to amend or revoke the plan he set up for his property after he dies. There are other ways that trusts are drafted, but I'd have to read yours before I could tell you if it varies from the general rule.

If the father's portion of the trust was set up so that mother had a testementary special power of appointment, she can do with it what she wants. If not, she can't. Stu

This is not a tax-related question, you need to talk to your attorney or post on misc.legal.moderated

The terms of the trust were; "All assets to be split betweeen the two kids". Right?

Now, it seems the mother would prefer to leave the house to the son, but split the remaining assets between the kids? It sounds like the daughter is about to get the short end of the stick. The answer is, "it depends." I assume the mother lives in the house until she dies, then the trust distributes the asets. Does she retain any rights beyond that? If the trust allows her to spend down assets as she wishes, and borrow against the house, she may be able to deplete the trust of its assets. But, a properly worded trust would allow no borrowing against the home and limited withdrawal rights against any such principle. The trust documents need to be reviewed very carefully. Sounds like dad was fair but mom is pro-son. JOE

I don't understand.

Originally, it was all supposed to be split evenly?

Now, the mother wants the house to go to the son, and the rest to be split evenly? Or the house goes to the son, the daughter gets the house's cost (or value) out of the rest, and the remainder is split evenly? Seth

In the last part of the first paragrah I think you meant

*by* the son who inherits the house, not *to* him. There are always ( or should be) provisions in a trust to divide in cash or kind. Since the house was originally not willed to anyone specifically, but was presumed to be divided equally with all other assets, mother (the executor) can do whatever she wants in dividing assets equitable, and/or is agreeable to all the heirs. The trust cannot, and need not, be changed. Mother, however, can do whatever she wants with her 1/2 of the total estate, since she owned that 1/2 or everything, and still does. She can pay the trust $150K for the husband's 1/2 and take the house entirely for herself, and give it to the son. The key is *equitable division*. ed