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After mom died this past year, dad (90) had the will rewritten in a much simpler fashion -- 50/50 split between my sister and I (except he has told me she gets his car since he is giving me my mom's car this month, which is fine with me, I'm not telling her so when the time comes she is going to be happily surprised).


Last week dad contacted his financial managing firm and had them draw up papers distributing gifts in perpetuity to a number of organizations, charities, and his sister, with the remainder being split between my sister and I. Wouldn't the will override this change to his financial account management? And does "in perpetuity" mean that my sister and I will have to continue giving gifts of a set amount to these organizations, charities, and his sister?


I'm so confused. But I am more concerned that my father is either confused himself or being taken for a ride. The lawyer was supposed to be involved in all these phone calls with the financial management firm but they said they couldn't get him conferenced in.


I told dad I want to speak to his lawyer and he asked me to wait until next week while he attempts to contact him again. My sister is under the impression that the lawyer may have washed his hands of my father since it appears dad doesn't take the lawyer's advice.

If your father has accounts being managed, these should have beneficiaries named on them. The way you've described it ("...gifts in perpetuity to a number of organizations, charities, and his sister, with the remainder being split between my sister and I.") sounds like he has set aside a given amount for these orgs, charities and his sister, but the rest is split 50-50 between you and sister. I can't think of any way he could set up gifts in perpetuity that would also split the remainder - there wouldn't be a remainder.

When dad wasn't well, we went the atty route, taking mom there to set up POAs, will, trust, etc, so she wouldn't be left destitute. Some time after he passed, she cashed out the trust (foolish thing to do, for the most part.) When it was clear she was showing signs of early dementia, we revisited the atty. She was quizzed by him, and deemed still capable of understanding and signing new documents. The condo was set up as a Life Estate and the funds (most tied up in CDs at the start, but soon to mature) were moved to an irrevocable trust.

It wasn't clear to me until later that one of the "goals" was to not feed funds from trust to mom, so if/when she needed NH, Medicaid would be used. Personally I found this WRONG and had no intentions of doing that. If someone has the means, they should pay, not the taxpayers! BUT, the funds have been well managed, and even though a lot was drawn every month for at least 5 years, it's like we haven't touched it! Turns out also that mom's MC place would keep her to the end - unless someone needs specialized nursing care, they don't need a NH.

Anyway, this was a trust, with the three of us named as trustees and beneficiaries. It was a good way to earn money, avoid some taxes and protect the funds from her (she was not one to fall victim, but with dementia that could easily change!) The other benefit is that on death, the funds become ours. NO probate to worry about.

Mom also has a will, which is good, because funds that came in after the fact now have to go through probate and be distributed per the will. There was the refund of the MC deposit and interest on that, plus the second stimulus, residual funds that were needed to open the SS rep payee account and be held in savings plus recouping the shortage of the first stimulus. If not for these "incoming" funds, we wouldn't even need the will. We had sold mom's condo several years ago. Stuff was either donated, trashed or bros took what they wanted.

The Life Estate was a BAD idea. I think it would be best for someone who has a known terminal condition, but can remain in the home for most if not all of their remaining time. We had to move mom to MC, and the cost to keep it was ridiculous, the costs to repair things were ridiculous and my time needed to see to everything was ridiculous!

Anyway....
IF your dad has bank holdings, savings account, checking account, CDs, etc that do NOT have named beneficiaries, and a house, those would all be split 50-50 between you two. I should think if he wanted the car to go to your sister, it should be in the will already. If not, have him add that.
IF your dad also has holding in a financial management firm, those should all have beneficiaries named. As noted above, he could have split off some to set up the continuing payments to the others, while the rest is assigned to you and your sister.

The atty consult might still be needed, HOWEVER, since he was NOT party to the "changes" made, what purpose would that serve until you get the details? Your time would be better spent talking with the financial managers. You could likely do this from home, but you would have to get dad to contact them and say it's okay for them to discuss with you (not that you can change anything, just to understand.) You could present it to him that you want to understand all that has to be managed when he isn't here to explain it. It doesn't sound like he'd object.
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disgustedtoo Feb 15, 2021
Additional examples:

I have several accounts with financial managers. An annuity set up long ago, my 401k rolled over to IRA and a new brokerage account for my share that will come from mom's trust.

The last was done to avoid cashing the trust out, which would result in 20% cap gains tax. They move whatever shares can be moved directly from the trust to the brokerage account. I hope to set up a trust like we had for mom, to be used should I ever need care like she did. Once that is created, then they can move the shares back, with little or no gains to pay.

ALL 3 accounts have my 2 kids listed as beneficiaries.

When I do get around to setting up that trust, I have to make a new will. The one done before is very old and doesn't cover enough. Only things I own outside of the trust, brokerage account, IRA and annuity would be handled by the will (my current house, cars, money in CU accounts, land I own in another state) unless I make changes at that time or later.

The best way to pass most wealth is via a trust. Irrevocable is best for this purpose, so long as the person setting it up understands they have no way to modify it, and control is handed to the trustees. Choose them wisely, as the funds/assets held in the trust should be used for the person's benefit while they are alive!

A trust bypasses probate and goes directly to the beneficiaries. As long as it is under the ridiculously high inheritance limit set by Congress, there would be no inheritance tax. BUT, as noted above, cashing out the holdings (stocks, bonds, etc) WILL incur 20% cap gains unless done carefully. Using the brokerage account shown above, minus transfer to another trust later, you would get 15% cap gains taxes on the funds as they are withdrawn.

As noted in the first posting, it would be best to get dad to authorize you to contact the financial managers and ask questions about what has been set up. Until you have these details (ask as MANY questions as you can, to fully understand! I had to, because one bro was doing it wrong!), the attorney won't be as much help.

IF after getting all this info you feel it isn't right, you could discuss with the attorney, or chat with dad and have the "arrangements" modified.
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His financial management company is making payments while he is alive. His will is the authority after his death. I would suggest that your father add a rider to his will stating that your sister get the car.
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Isthisrealyreal Feb 15, 2021
Taarna, that is not necessarily the case. If his brokerage accounts have named beneficiaries then the will does not affect them.

I am not trying to argue with anyone but, people have false beliefs and they are going to be sorely disappointed if they do not get the correct information.
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In Ohio, as I am finding out, individual accounts that have beneficiaries take precedence over what the will states. For instance Mom's will left her "estate" to be divided between her four children or their children if deceased. But her bank account, life insurance, and IRA all have specific beneficiaries named. And each institution has it's own set of paperwork for each heir to fill out to receive their share. I even had to submit a copy of my brother's death certificate so his daughter can receive his portion.
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worriedinCali Feb 15, 2021
All of the accounts with beneficiaries “pass outside the estate” as you now know. That is why they aren’t governed by the will, they aren’t part of the estate.
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A will doesn’t overrule everything. If there is an account set up with a beneficiary-such as a bank account or IRA, the account goes to beneficiary regardless of what the will says.
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A trust is better than a will...find an Elder lawyer to help you out
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Isthisrealyreal Feb 15, 2021
You still have a will even if you have a trust. This ensures that anything missed in changing the owner to the trust will be placed in the trust at your death. It also deals with the personal items that people want to go to specific individuals.
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If your dad has a lot of money and a lawyer, he probably has a trust, not only a will. Are you sure he doesn't have a trust?

A will tends to cover "stuff" not in the trust -- Mom's jewelry, the baseball card collection, cars that aren't titled in the trust, etc., and the trust would cover the financial stuff and big ticket items like real estate and cars. A large estate that only has a will is subject to probate, which isn't the best way to preserve one's funds. That's why people make trusts.

If he has enough money to be setting up gifts in perpetuity, I'll bet he has a trust. Also, his lawyer doesn't work for you and won't talk to you without Dad's permission.

I'm going to guess your dad just simplified the "stuff" part of his will by taking your mom's name off it (not necessary, but some folks do it anyway), and perhaps removing other bits and bobs he might have intended to leave to others. His sister might have been one of those people, and it sounds like he set up other arrangements for her.

It sounds a tad money-grubbing to be all concerned about this right at the moment unless your dad is not competent to be making these decisions, in which case you'd better get that documented by his doctor and the evidence taken to his attorney.

If he's competent, you can ask him if he has a trust, and he can tell you -- or not.
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Frances73 Feb 15, 2021
I wouldn’t call it money grubbing. Trust me, it’s better to get this all straightened out while he is alive.
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Papers drawn up distributing gifts in perpetuity means forever and ever. Unless there is a clause in this contract that states that when your father passes that these organizations, charities and his sister will stop receiving money. If they have access to his accounts and monies it would be lucrative for them to keep monies going to the above mentioned parties because they would also get a cut for managing said distribution of these funds.

As for the abusive husband Mrs. Gray Grammie won't be leaving him so there is no point to encourage her to do so. I am very sorry that the only way you will know freedom is when he passes.
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GG, Replying to your reply to me.

I would have no issue walking out on a situatuon in which there was documented abuse

Each time he hits/pokes you, call 911 and have them transport him to hospital for a psych eval, or if not, simply doc that he has hit you.

You don't need to put up with this simply because he has dementia.
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I think your supposition that your father may be "taken for a ride" has merit, unless he has an extensive estate with a very high value.  Still, if your father doesn't get a more definite answer from the existing attorney, find another to review what the one who couldn't get conferenced in has prepared.   And why couldn't he be conferenced in?   

It's also a bit troubling that your father is apparently having trouble getting in touch with this attorney.
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I’m not at all sure about the accuracy of ‘Wills do not have any effect on assets that have named beneficiaries’. Wills don’t have any effect on gifts that have already been given, but promises to make gifts are not normally binding, even if in writing. Perhaps there is ‘consideration’, which makes it a binding contract to pay later. Perhaps these ‘gifts’ have been tied up in some other way, via trusts etc. However ‘in perpetuity’ is also a very unusual statement. I would at least do some double checking on the qualifications and competence of this ‘financial managing firm’. Accountants shouldn't be getting mixed up with wills. Estate planning normally needs a lawyer, not a financial manager.

Complex arrangements to tie things up are usually only appropriate in very large estates. The simplest answer is that either this is not competent, or that your father doesn’t understand or remember. Take these documents to the lawyer, preferably before father signs them (although he can always get rid of them on the lawyer’s advice).

Lawyers will usually keep going if they are getting paid, but if this is a small estate, your father wants complex arrangements and then changes his mind, your sister may be right and the lawyer may think it’s all a waste of time. Get it sorted out and try to convince Father that it can’t be changed again.
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Isthisrealyreal Feb 14, 2021
Named beneficiaries in the US bypass wills and probate. The asset isn't even listed in a good will, because it is NOT part of the estate, it has already been gifted prior to death upon death.

It is legally binding to handle assets this way.
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I agree with RR that this sounds a mess, and you and Sister need to meet with Dad and Lawyer to discuss what Dad did. First of all is Dad diagnosed with dementia or is he competent mentally and handling his own finances. Because if the latter you aren't much involved in any of this at all anyway. If Dad is competent is to be the question. What he is doing with his money now depends upon it.
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Duplicate
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GG, why are you putting up with physical abuse from your husband?
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graygrammie Feb 14, 2021
Because I didn't exit when I could have / should have. My kids will support me if I do, so that is good. A son lives with us, which is good (he's got my back) and bad (dh is very bitter toward him). How do you walk out now when you are so needed?
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Wills do not have any effect on assets that have named beneficiaries.

Sounds like your dad allocated specific accounts to be paid to charities as the named beneficiaries with a percentage of the value distributed annually, hence in perpetuity. This has nothing to do with what his will bequeathes to anyone else.

If you believe that he is unable to understand what he is doing then you should have a meeting with him and his attorney so that it can be explained and ensure that his wishes are what he actually set up.
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rovana Feb 14, 2021
Thanks for your explanation. Maybe I misunderstood the OP, but how can you pay in perpetuity unless the pool of money to be used is somehow set aside when the estate is settled? If it is just from a general type group of assets, then how do they figure what the remaindermen would get? I assuming that when the estate is divided up, some definite amounts have to be set aside or the people inheriting the remainder of the assets would not know what the remainder actually is. Anyone know how this works?
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I'm not a lawyer. I was under the impression that a will would not necessarily interfere with a person handling their financial affairs day to day. Like, I made a bank account payable on death to someone, but later on, I decided to spend all the money in that account and closed in, so payable on death was now irrelevant. Of course, that is not the same as a will, but I don't see how you could make a will and then have all your assets "frozen" so to speak, for the rest of your life. I think you might ask your dad if you could accompany him in speaking to his lawyer and/or financial manager, so that you could clearly understand the situation.
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graygrammie Feb 14, 2021
Dad is five hours away and I have a husband with health issues, both physical and dementia. We are making plans to go down next weekend in order to get the car (dad wants it gone before he has to renew his insurance in March).

We have to have a third party go along to drive our van back as dh should not drive (he thinks he should and that is a major source of tension, he has run into things the two times he drove this month, both to the mechanic around the corner, the first time it was their building, this past time it was another car in the lot).

Even when we are down there, dh demands so much attention that I cannot do the things I need to do. And no, he won't stay behind in the hotel room or at my dad's house. He is a control freak and can't let me out of his sight. If I were able to talk dad into taking me to meet his lawyer, my husband would go along and then sit very close to me and give me physical indicators to not talk. I am a questioner and he feels it is a wrong for a woman to ask questions. Yeah, lots to unpack with this man. My mother's obituary was horrible because of that control. My sister was furious at how generic it was. I am too, but every time I tried to have input, my neck got squeezed or my leg got kicked or I was poked in the side, followed by a hiss in my ear, "Let your father handle this."
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