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JaxLaw
JaxLaw, Attorney
Category: Estate Law
Satisfied Customers: 1724
Experience:  Estate Planning (i.e. wills, trusts, power-of-attorney doc.s, living wills, etc.), Probate and mor
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My husbands mother passed away 4/2012. There are 4 siblings.

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My husband's mother passed away 4/2012. There are 4 siblings. The eldest brother is executor of the will. He and my husband are in an adversarial relationship. In fact, my husband shot his brotherin the leg (not seriously) when he found him breaking into and removing everything from the apt. that my husband and his mother shared. Now my husband is in jail and we have to not make waves so that my brother-in-law might back off a bit and my husband might get a lesser sentence.
The will has an irrevocable trust and there is a special needs trust set up for my husband. We have not seen this trust nor any other docs from the will (other than the will itself that our criminal atty. requested). My question is how to go about getting access to my husband's trust so we can use it to help with his case and other expenses. The other siblings got their shares, but the will was never filed with probate. I had an estate atty. send a certified mail demand letter just for the documents, but got no response. Any ideas on how to proceed? Can my brother-in-law take my husband's share of the will? Can he do anything to the special needs trust? Thank you.
Submitted: 1 year ago.
Category: Estate Law
Expert:  JaxLaw replied 1 year ago.
DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

Hello and thank you for choosing JustAnswer! If you need me to clarify anything, please let me know.

A qualified beneficiary (which your husband appears to be because his mother has passed away) of a trust has a right to receive a copy of that trust upon demand.

The trust terms are set when the document becomes irrevocable (either at it's creation or when the grantor dies, depending on how it's set up). The trustee would not have the power to alter or amend an irrevocable trust without a court order. The trustee would have whatever power and discretion that the document gives him. You would need to review the trust to determine what he can do.

The trustee has a fiduciary duty to account and inform. If he breaches his fiduciary duty, your husband can petition the court (the probate court would handle this type of action) to have him removed as trustee for breach of fiduciary duty.

Here is the statute on his duty to provide the trust: (NNN) NNN-NNNNDuty to inform and account.—The trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.
(1) The trustee’s duty to inform and account includes, but is not limited to, the following:
(a) Within 60 days after acceptance of the trust, the trustee shall give notice to the qualified beneficiaries of the acceptance of the trust, the full name and address of the trustee, and that the fiduciary lawyer-client privilege in s. 90.5021 applies with respect to the trustee and any attorney employed by the trustee.
(b) Within 60 days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, the trustee shall give notice to the qualified beneficiaries of the trust’s existence, the identity of the settlor or settlors, the right to request a copy of the trust instrument, the right to accountings under this section, and that the fiduciary lawyer-client privilege in s. 90.5021 applies with respect to the trustee and any attorney employed by the trustee.
(c) Upon reasonable request, the trustee shall provide a qualified beneficiary with a complete copy of the trust instrument.
(d) A trustee of an irrevocable trust shall provide a trust accounting, as set forth in s. 736.08135, to each qualified beneficiary annually and on termination of the trust or on change of the trustee.
(e) Upon reasonable request, the trustee shall provide a qualified beneficiary with relevant information about the assets and liabilities of the trust and the particulars relating to administration.
Paragraphs (a) and (b) do not apply to an irrevocable trust created before the effective date of this code, or to a revocable trust that becomes irrevocable before the effective date of this code. Paragraph (a) does not apply to a trustee who accepts a trusteeship before the effective date of this code.
(2) A qualified beneficiary may waive the trustee’s duty to account under paragraph (1)(d). A qualified beneficiary may withdraw a waiver previously given. Waivers and withdrawals of prior waivers under this subsection must be in writing. Withdrawals of prior waivers are effective only with respect to accountings for future periods.
(3) The representation provisions of part III apply with respect to all rights of a qualified beneficiary under this section.
(4) As provided in s.(NNN) NNN-NNNN1), the trustee’s duties under this section extend only to the settlor while a trust is revocable.
(5) This section applies to trust accountings rendered for accounting periods beginning on or after July 1, 2007.

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.
Customer: replied 1 year ago.

Thank you for that answer. What exactly is a special needs trust, which is what I understand was set up for my husband within the trust due to his poor health and disabilities.? My brother-in- law, I think has control over this special needs trust. Does this give him any right to not notify or inform my husband of the accounting or give him a copy of the trust agreement?

Expert:  JaxLaw replied 1 year ago.
DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your area.

I apologize for the delay in responding. I had logged off the site and did not see your response until just now.

A special needs trust is set up to help protect an individual from having his/her government benefits from terminating (or keep him/her from being eligible to apply) due to the receipt of inheritance. It's set up with special language that allows the trust funds to supplement and not supplant the benefits.

No, all beneficiaries have the right to information and a copy of the trust.

JaxLaw, Attorney
Category: Estate Law
Satisfied Customers: 1724
Experience: Estate Planning (i.e. wills, trusts, power-of-attorney doc.s, living wills, etc.), Probate and mor
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