Can a living trust become "stale"?

Understanding that a POA, or DPOA, can become old, or "stale" in their legal terms, can a Living Trust also become old, or "stale," as well? My parents put together a Living Trust indicating that both me and my brother as heirs to their (now meager) estate. However, my Mom no longer wants my brother to receive anything other than a few sentimental items from her estate and wishes that the bulk of it, including the proceeds of the sale of her home, go to me so that I might still have a roof, no matter how small, over my head when she passes. Will she need to have the Living Trust and/or Will completely rewritten or will an amendment do?

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Living trusts--unlike powers of attorney--do not become "stale," and they can continue to be amended as set forth in the trust document itself. If the trust was a joint trust signed by two people, be sure that it can still be amended by the survivor. If so, then, yes, your mother can have an amendment prepared by an attorney and signed by her to carry out her current wishes as the distribution of the trust property.

As others have noted, if there is property outside of the trust, it will not be affected by the trust terms. Such property will pass according to your mom's will. That being said, if the will is a "pour-over" will (which directs all property to be added to the trust), then indeed it all WILL wind up in the trust and be governed by the terms thereof.
Living trusts do not become "stale", the content of the trust that is still in tact, is still legally binding by the trust, no matter how old the trust is. However property changes, new investments that are not added to a trust over the years, are obviously not part of the trust, therefore they become issue for probate court once mom passes. So I'd look for things that are not part of the old trust and have them added, for example any accounts that do not have beneficiaries, even vehicles can become part of a probate battle, so I would add that to a trust. The main thing is if she's the only trustee now, a new trustee needs to be added with mom. I would contact an attorney, the attorney who did her trust if you can, and I would add any new property, even vehicles to the trust, to be protected, I would also remove account information or property that no longer exists from the trust because the parents sold it or spent it. Since your mom needs a secondary trustee to herself, this could be you, but I will tell you that most good attorney's frown on children who come in on a trust as a trustee and do not include their siblings as benefactors to the trust, especially if there's only one sibling. If no secondary trustee is added to the trust, I'm pretty sure the trust is voided, and the entire estate will go to probate. I'm sure you know about probate. I would clean the trust up, and consider adding yourself and your brother as trustees, have mom delegate what she wants to go where and to who, and finalize the trust. Maybe mom will let you have her house and the brother can have everything else. Whatever is in a trust, is set in concrete, it cannot be argued after mom passes, and cannot go to probate.
Just a side note, I was written out of my mom's Will due to circumstances caused by her dementia back in 2008. However, I am the only one willing to step up and take care of her, it's been 4 years now. All the other siblings (4) have backed away and now they hardly ever stop and see her or call to see how she is doing.
In the first year that she was living with me, she did go back to her attorney, with my younger sister, and changed her will to put me back in, but that was without any prodding from me. As a matter of fact, I told my sister that was not necessary. Why? Because I didn't feel mom was mentally sound to make that decision, but they did it anyway and the attorney made the changes. I am not a POA, DPOA or Health Care Proxy. It's been a difficult, interesting and challenging journey with my mom and siblings. It has definitely shown me the many sides of my siblings. Not a good lesson to learn but a valuable one at that. All the best to you and good for you in stepping up to take care of your mom.
Dear Lotsokittycats, please don't be so hard on Hatemooch007. I don't feel she was targeting you personally. Hatemooch is right on in a great deal of cases. Parents do this, they help the child who has nothing and ignore the one who has worked, saved, planned for retirement, etc.

Both my brother and I have financial security, but my mother cut my brother out of her will. Thankfully, he and I were able to maintain a close and loving relationship even though my mom tried to drive a wedge between us. My brother was like yours, didn't want to have anything to do with mom. Who could blame him? I didn't. It hurt him to be treated like he was. Just think, his own mother rejected him. Fortunately, we kept an open relationship and I let him know just what was going on with mom's care. She died with nothing, because all had been spent on her health. That included part ownership of a house.

I do not know your circumstances, but many times the so called inheritance has to be spent on the parent's health. You might end up with nothing too. None of us knows the future. If she has to go to a care facility, the house may need to be sold and the money used for her care. You like every other caregiver in the world isn't guaranteed anything. If you haven't, you need to see an elder care attorney.
You do not say what your mom's health situation is. So with that said, from my understanding with everything I have had to go thru with my mom, yes, the living will can be changed if your mom is of sound mind. Good question for your mom's attorney.

Good article
As I noted in another question about POA/DPOA, those do not become "stale", especially the DPOA. Sometimes financial or other institutions can balk at them if they are old, however DPOA is the better of the two, because when the principal becomes incapacitated, POAs do not work. The "D" is for durable, and it continues after the incapacitation - state laws indicate the power continues (again, some do not honor it, in particular federal institutions like pensions, IRS and VA - they require acts of Congress and their own documents be used, which is stupid if the person is incapacitated!)
Anyway, I do agree that the whole trust should be revisited and another trustee be added. Amended or not, you will have to have an attorney. If your mother is still competent, then she can dictate whatever she wants. If your brother is not aware of her change of mind, he should be advised now, to avoid issues later, imho.
You say so you have a roof over your head. What about your brother ,and why is he written out of the trust? Is it because you have more need? So one sibling gets penalized for being financially stable? Manipulation of elder parents for one persons interests at the expense of another is sick and twisted greed. Many times the one doing most of the work gets screwed over.
Dear HATEMOOCH007, First of all, I must admit that, since you don't know me, my brother or the relationship therein between us, I don't particularly like your accusatory tone (penalized? manipulation? sick and twisted? screwed over?)! NO! This is completely her idea and has been thinking about removing him from the Will and Trust for at least 2-3 years because he has been/is quite cruel to her and they do not share any sort of warm and loving relationship! He would still receive quite a lot of VERY sentimental (AND high valued) items she has earmarked for him and eventually his children. Granted, he does own his own home but since I have been physically disabled since 2006 and receive very little in SS income, Mom feels that I should receive the proceeds from the sale of the home so that I won't end up on the street (which is quite conceivable!) He has, on numerous occasions, said that he wants nothing to do with anything relating to Mom's assets (which, aside from the house, are few), and Mom feels that if that's the case that she should make sure that happens via the change in her legal documents. I hope that answers your "questions" and I most certainly hope that you will refrain from answering and/or accusing someone else in the future the same way you answered me!
You need to look at the terms of the trust to see what she can do. Much of what has been posted so far makes assumptions. We have a revocable trust. We had a restatement drawn up several times over the years to keep up with family changes & tax law. Hubs resigned his trustee position voluntarily and I was sole trustee for a while. I decided to appoint a fiduciary as co-trustee and successor trustee, but had to have hubs formally declared incapacitated (per the terms of the trust) since I had to be the "non-incapacitated grantor" to do this. Of course, I can't change any of the terms of the trust now since all changes had to be made by both grantors. But when he dies, the trust will be separated into two trusts. "His half" will be in an irrevocable trust. Mine will be in a trust I can do whatever I want with--I can get rid of it, amend it, whatever. His will have to be administered as it was set up. Your mom can do whatever she wants as long as the terms of the trust allow it and she has capacity. We've had our trust since 1984 and it's never been described as "stale". BTW I also have POA/DPOA. POA was very flexible & all I needed up until declaration of incapacity. DPOA covers it now. Be aware that fairly often your POA/DPOA/Trust won't be acceptable e.g. Social Security doesn't care about your DPOA. I agree that you ought to consult an attorney.

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