Dad and Mom created an irrevocable Trust in 1990 in IN. Trust was Irrevocable on Dad's death and Mom has written a new will that conflicts with the Trust as to what happens. Advice?

Follow
Share

Mom and dad both changed citizenship to Florida residence. Trust was Irrevocable on dads death and mom has written a new will that conflicts with the Trust as to what happens. The Will was just written in 2015 in Florida. Can my mothers 2015 will take precedence to the Trust that my dad and mom setup that has been in existence with my dads wants and family desires since the 1990's? The new Will my mom created doesn't agree with the Original Irrevocable Living Trust signed agreement by both of them before the new Will was executed. She visited me and said my older brother who hasn't worked an honest day in his life has gotten online and found a way to get into her checking account. I had lunch with her and took her to the nearest Chase branch and we got the electronic feature disabled. Mom has a hard time even logging into a computer let alone finding a new pin for her checking account at Chase. She's in trouble. Please help, this is exhausting !!!!

This question has been closed for answers. Ask a New Question.
Find Care & Housing
9

Answers

Show:
All your responses are great and will help my sleepless night of worrying about this dilemma. Thanks everyone !!
Helpful Answer (1)
Report

Garden Artist, your answers are great, This gets complex. Only my brother and I were heirs in the Irrevocable Living Trust, upon my dad's death. We're still alive but the real estate assets are titled in the Living Trust years ago. Question, should I have the a Trust document certificate also registered with the local real estate registrar of deeds for extra protection, and who should I draw up the document, me, the Indiana Attorney that created the original Trust, or a new Florida lawyer where my mom and brother live together? Thanks so much !!!!!!
Helpful Answer (0)
Report

Sorry, went from iphone to better typing computer. The Attorney is the same one that dad explained to me would help me as a co-executor of the Irrevocable Trust upon his death (dad regretfully passed away) and dad when alive has talked to me many times that ------- would help me out settling mom and my brothers money and other mental issues, me as family member and later executor of the estate, and now the Attorney has helped my mom write this Will. My mom has acknowledged the Living Trust and has talked to me about it many times, and explained certain details of the trust in detail, and even explained she was part of creating it (yet back on the 1990's). It is signed and notarized and I have the entire trust document that mom gave me. My mom provided me with the newly written Will on 9/30/2015 and when I asked her what had changed my moms words were "according to Florida law I was required to update my will, so I "had ------- update my will, I don't know what it says or what changes were made." I asked mom to tell me what had changed and she said "I don't know ------- wrote it." (------- is the Attorney in Florida). Mom and my unworking brother have blown through so much money I hate to say if they go through it all if she needs to come into our home or an assisted living home if it gets needed. The Irrevocable Living
Trust was drafter, reviewed by mom and dad, acknowledged, signed and notarized by both mom and dad and the Trust drafting Attorney in Indiana. Mom now and has established citizenship in Florida but still has ownership in a place in Indiana. My questions that stir my head daily are: 1. Which state now prevails over the Trust because of her citizenship, Florida or Indiana? 2. Can I go to the police/FBI and have a case opened? 3. Should I go to court to try to get Conservatorship or Guardianship over my mom to protect her from my brother stealing and manipulating money? (If so what state do I find an attorney, Indiana or Florida?). Wow, I'm a professional worked all my life since I was 13 and have been middle income successful, BA and MBA, but your parents, college classes or stressful work never prepare you for this. Thanks for listening all and please respond your thoughts no matter what you feel.
Thanks, Matthew from the Midwest
Helpful Answer (0)
Report

Think I just realized how this could have happened, if some suppositions are true.

Your father and mother executed a Revocable Living Trust, leaving everything to the other. If there were no other heirs, then when your father passed, your mother inherited everything. The Trust itself became irrevocable, and your mother couldn't make any changes or new Will that would affect the Trust.

However, if she's the sole heir under the Pour-Over Will and in the Trust, then the assets are then hers to own, assign, and/or dispose of.

If there were no contingent beneficiaries, the Trust would have served its purpose and had no further use, again if there were no other beneficiaries named.

So then she could theoretically create a new Will, closing out the Trust as all the assets were conveyed to her if they were funded in the Trust. Once that happened, all she had to do was retitle them, they were her assets, and she could close the Trust.

Is this what happened?
Helpful Answer (1)
Report

The Attorney is the same one that dad explained to me would help me as a co-executor of the Irrevocable Trust upon his death (he regretfully passed almost thand now he's helped my mom write this Will. My mom has acknowledged the will and has talked to me about it many times and even explained she was part of creating it (yet back on the 1990's). My moms words and I had ------- update my will, I don't know what it says or what changes were made." I asked her to tell me what had changed said I would be executor.
Helpful Answer (0)
Report

The Will and the Trust are totally separate items. If assets are in the Trust, they are not hers to give away, the Trust controls them. She can only bequeath what she owns herself. Go back to the attorney who wrote the Will and inform him of the errors.
Helpful Answer (1)
Report

Your best bet is see a lawyer about this.
Helpful Answer (1)
Report

Ditto the hazards of online banking-- my mom's account with another major financial institution, was accessible by anyone with her account number plus her social security number, I could imagine many people know both of those for their elderly relatives, or anyone with access to the home office could easily find it in the bottom file drawer, with very little effort.
Helpful Answer (1)
Report

Matthew, it was my understanding that a Revocable LivingTrust does become irrevocable on death of the maker, or Settlor, but that an Irrevocable Trust is irrevocable on execution. I think what your parents had was the latter type.

Assuming both your parents signed the Irrevocable Trust, I think there is a serious legal conflict with your mother having executed a new Will which is in conflict with the Trust. However, I'm not experienced in this specific type of situation and really feel this is a matter for an elder law or estate planning attorney.

I don't know of a way to break an Irrevocable Trust; a qualified attorney would, if it's possible.

If on the other hand your father created the Trust for the benefit of himself and your mother (which doesn't seem to be the case if they both executed the Trust), that might be a different situation in which your mother could in fact create her own new Will. Again, this a complex situation which really requires the expertise of someone knowledgeable in these areas.


As to the second part of your post, go back to Chase with your mother, close out the existing account because security has been breached (by your brother) and open a new one. Don't enable any features that could allow your brother to dip into the account for his own purposes.

Chase will easily be able to handle closing of the old account and opening a new one, right there on the spot so you can leave with desk checks for the new account until packages of checks are mailed by Chase to your mother, or perhaps to you to protect them from access by your brother if he visits your mother's home.

However, your profile states that your older brother lives with your mother. Is this still true? You wrote above that you had lunch with her. So, I assume that you live close to her, with your brother living with her? If so, then he's right there in the home to confiscate or access anything he can get his hands on.

If your mother is agreeable, I think you or another sibling, other than your dishonest brother, should take over the checking account. Even with PINs and passwords, and with your mother's apparent difficulty in finding her PIN (if I read your post correctly), she would likely have it written down somewhere, and if your brother finds it, he can forge access to get to her account.

I really don't see any other way to keep him from accessing her funds again, even if he's not named as signatory on her account.

Your post raises one of the hazards of electronic banking.
Helpful Answer (2)
Report

This question has been closed for answers. Ask a New Question.