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LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 7422
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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My sister has a living revocable trust naming me, her only

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My sister has a living revocable trust naming me, her only brother and survivor as the successor trustee from 1990 to within a week of her passing from progressive multiple sclerosis, breast, lymphatic and lung cancer, she died at age 64 last month in hospice. She was on morphine and other drugs during the one week in ICU and the one week of her Hospice when her attorney changed her trust and named several people and organizations beneficiaries of the trust. She was still on pain medication and other drugs when she signed the papers a few days prior of her death. The attorney has since prepared or has tried to prepare tax records and other communications with her financial adviser and others without my knowledge (I found out from her financial adviser). My question are: Can I fire her attorney and use the former trust? Can I use the original trust document? Do I need an attorney to specifically do something, or can I take care of the trust myself using a Realtor, CPA and financial adviser? If not, what do I need an attorney for?

LegalGems :

Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! I am so sorry to hear of this, particularly after losing your sister. One moment please as I review the remainder of your question.

LegalGems :

In order to revise any legal documents i.e. a will/trust, the person needs to be of sound mind. If a person is on heavy medication, that is generally not the time to revise testamentary plans, particularly long standing ones. One's mental capacity can be determined by statements from doctors, caregivers, family and friends. The courts can also examine the medical records for evidence of narcotics or other prescriptions that affect mental competence. Generally, the courts will look to see if a person exercised undue influence in their dealings with someone that is mentally incompetent -this is when they use their position of trust to persuade the person to change their will, financial holdings, etc. Generally these type of transactions are voided by a court. However, in order to have a court review this, an interested party needs to file an action.

LegalGems :

An attorney would bring an action to challenge the trust itself, or if undue influence is suspected, to challenge the role of the person appointed trustee (breach of fiduciary duty).

Customer:

Is it appropriate to dismiss this attorney?

LegalGems :

You would need a court to do that, as he represents your sister's estate, so only the new trustee has the authority to fire him, which is why you would need to hire your own attorney to contest the will. If however the court finds he acting with impropriety, a complaint can be filed with the bar association.

Customer:

I am the successor trustee, opened new accounts and have already transferred money and paid bills, etc. as the new trustee, can I fire the attorney?

LegalGems :

As the new trustee, unless there was a restriction regarding counsel, then that would be permissible. Generally the trustee has wide discretion in this regard.

Customer:

Outside of being challenged by any of the new beneficiaries, is there a need to conduct any specific trust business through an attorney? I don't want to just blow her money to have comfort services, etc. I am certainly willing to conduct things legally, but directions seem to be laid out specific enough that I can perform her estate wishes. It seems that professionals are coming out the woodwork to "help" me. I have received a lot of lengthily worthless communications from her attorney and his assistants.

LegalGems :

No, an attorney is not required, but since the trustee is personally liable for any mistakes, whether intentional or on accident, it is always a good idea to have an attorney at least reviewing one's proposed actions. I find that this is money well spent. But I would urge you to find one that you feel comfortable with that isn't "bill-happy" because you are right, many professionals are unethical and will charge for everything. You should interview an attorney first to make sure you are comfortable with him/her, and of course verify with the state bar to ensure they are in good standing. There are a couple of good websites out there having customer reviews such as www.avvo.com and www.lawyers.com - but of course the best recommendation usually comes from a friend that was in a similar situation.

Customer:

Thank you for your help.

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