How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Christopher B, Esq Your Own Question
Christopher B, Esq
Christopher B, Esq, Attorney
Category: Estate Law
Satisfied Customers: 2758
Experience:  Litigation Attorney with education focus on estate planning and tax
84496330
Type Your Estate Law Question Here...
Christopher B, Esq is online now
A new question is answered every 9 seconds

I have a question regarding construction of an after death

Customer Question

I have a question regarding construction of an after death arrangement. Please let me know if available to answer.
Submitted: 1 year ago.
Category: Estate Law
Expert:  Christopher B, Esq replied 1 year ago.

I'm here, what is your question?

Customer: replied 1 year ago.

If appointed to several positions actually all of them like fiduciary, trustee, executor - (the document has not yet been signed by my folk)s and I think I discussed some of their situation with you before concerning their ages and condition etc - there is language for reimbursement - a whole paragraph in fact and we suggested a paragraph that would also cover paying fees for defense that the attorney rejected. We wanted it to say My fiduciary, executor and/or trustee may employ and pay the compensation of accountants, attorneys, experts, investment counselors, custodians, agents and other persons or firms providing services or advice out of my estate in connection with any contest, or proceeding regarding and/or arising from the above (or arising from any related conflict) and/or due to their service as my fiduciary, executor and/or trustee. But he says it's not necessary as he has the language in a totally different part of it that says To defend and pay any and all costs, charges, fees, taxes, interest, penalties or other expenses of the administration of my estate, in installments with interest if desired, and except as expressly provided elsewhere herein, to charge the same against the income or principal, or partly against each, of my estate or any trust.

Expert:  Christopher B, Esq replied 1 year ago.

Do I think there is a problem with your language? No, do I think it is covered by the language from your attorney, yes. Your proposed language is more descriptive and I don't know why the attorney does not want to include it other than he doesn't want to change his document and include language he does not normally use. He works for you and if you want that language, he can also use his as well as yours as they don't seem to conflict.

Customer: replied 1 year ago.

But am I less protected because he won't put it in? We already know someone in the family is more than likely to cause trouble and take me to court. (We don't understand why he won't - we have tried to insist) He refuses to use it and really won't explain why and made it clear he expect his large amount of money.

Expert:  Christopher B, Esq replied 1 year ago.

I think your language has you covered better and I am not sure why the attorney does not want to include it. It is more specific and covers you better although the other language would probably work.

Customer: replied 1 year ago.

He wants to charge us double the original price because of the emails going back and forth where I keep asking the same question but not getting an answer and I was the one who had to suggest the No Contest clause and keep trying to get more protected, plus ask or discuss matters that he said he would include which he is not not now doing. He is now using the testamentary clause saying if my parents don't come in and sign ( ie and pay) immediately - although they paid substantially for the initial consultation that then the will can be more contested since his staff won't be able to attest to their capacity as more days go on. It will take longer to start the process again with another attorney and I have to travel plus he could harass sue for the will even if we don't use it. ( I don't recall my parents signing an agreement but they might have).

Expert:  Christopher B, Esq replied 1 year ago.

It is not acceptable to be unhappy with the service you are receiving. Even if your parents signed a contract, the amount would be continent on good work and being satisfied with the service. If you are unsatisfied, find someone else that will work with you. If you already paid a substantial fee then it is very unlikely that there would be any legal grounds for this attorney to pursue you. You could also refuse to pay more than was agreed and negotiate with the attorney. I'm sorry you are having such a difficult time with this situation.

Please let me know if you have any further questions and please positively rate my answer if satisfied.

Customer: replied 1 year ago.

I have two other issues with it and it's getting to be an emergency situation possibly if he is playing the capacity card of my parents. Maybe they won't be able to sign another will.

1. Am I reading this clause correctly that a trustee that is also a beneficiary can't be paid?


Notwithstanding anything to the contrary contained in this will, during such time as any current or possible future beneficiary of any trust created hereunder may be acting as a Trustee hereunder, such person shall be disqualified from exercising any power to make any discretionary distributions of income or principal to himself or herself (unless the discretion to make such distributions is limited by an ascertainable standard within the meaning of Section 2041(b)(1)(A) of the Internal Revenue Code), or to satisfy any of his or her legal obligations, or to make discretionary allocations of receipts or disbursements as between income and principal, or to make decisions with respect to tax elections or options the exercise or nonexercise of which could result in an enlargement of his or her beneficial interest hereunder. No Trustee who is a current or possible future beneficiary of any trust hereunder shall participate in the exercise of any powers of my Trustee which would cause such beneficiary to be treated as the owner of trust property for tax purposes.


2. Most of the wills pages revolve around a supplemental needs trust but the the beneficiaries are not listed per se and neither are the remaindermen (although asked it was never explained to me what my responsibilities if I take on all those roles would be too just btw) My example I gave him was what if my dad dies but my sisters kids needs the assets of the estate/trust because of a dire situation. Actually my question to him and his answer were




where does it state or how does it protect mom//dad if the trustee is responsible for paying out of the estate for any beneficiary that needs care and she is not defined as the beneficiary that the supplemental needs trust is intended for nor are the remaindermen specified










Your surviving parent is the beneficiary of the trust, if the trust is needed--everyone else is a remainder beneficiary--nothing gets paid out to anyone else if the parent is the survivor. Remainder beneficiaries by definition do not have a claim against the trust until the primary beneficiary passes; only then, do they become a beneficiary able to take, rather than a remainderman.







Expert:  Christopher B, Esq replied 1 year ago.

Did you have another question? I thought I saw that but it is not showing up.

Customer: replied 1 year ago.

I think the site is having problems. What was the last question you saw from me or post?

Expert:  Christopher B, Esq replied 1 year ago.

I'm not sure, I got strep throat this weekend and have been very sick so I apologize that I haven't gotten to the question earlier. I don't remember what exactly was the last question.

Customer: replied 1 year ago.

Oh so sorry to hear that. Would it be better to wait until tomorrow? One was a clarification on an older question but this is becoming an emergency situation as described earlier.

Expert:  Christopher B, Esq replied 1 year ago.

Yes that would probably be best, I'm just going to get some sleep and get to your question in the morning. I apologize. Get whatever questions you have and I will answer them.

Customer: replied 1 year ago.

Thank you Chris and feel better!

I can place them both here even though one is a follow up for clarification from a past question if that is ok.

1. It's getting to be an emergency situation possibly because the attorney is playing the capacity card of my parents. Maybe they won't be able to sign another will unless with him per him.

1. Am I reading this clause correctly that a trustee that is also a beneficiary can't be paid??


"Notwithstanding anything to the contrary contained in this will, during such time as any current or possible future beneficiary of any trust created hereunder may be acting as a Trustee hereunder, such person shall be disqualified from exercising any power to make any discretionary distributions of income or principal to himself or herself (unless the discretion to make such distributions is limited by an ascertainable standard within the meaning of Section 2041(b)(1)(A) of the Internal Revenue Code), or to satisfy any of his or her legal obligations, or to make discretionary allocations of receipts or disbursements as between income and principal, or to make decisions with respect to tax elections or options the exercise or nonexercise of which could result in an enlargement of his or her beneficial interest hereunder. No Trustee who is a current or possible future beneficiary of any trust hereunder shall participate in the exercise of any powers of my Trustee which would cause such beneficiary to be treated as the owner of trust property for tax purposes."



********************************************************************************


2.a Most of the wills pages revolve around a supplemental needs trust but the the beneficiaries are not listed per se and neither are the remaindermen (although asked it was never explained to me what my responsibilities if I take on all those roles would be too just btw) My example I gave him was what if my dad dies but my sisters kids needs the assets of the estate/trust because of a dire situation. Actually my question to him was




"Where does it state or how does it protect mom//dad if the trustee is responsible for paying out of the estate for any beneficiary that needs care and she is not defined as the beneficiary that the supplemental needs trust is intended for nor are the remaindermen specified"






Attorney's answer that wrote the will "Your surviving parent is the beneficiary of the trust, if the trust is needed--everyone else is a remainder beneficiary--nothing gets paid out to anyone else if the parent is the survivor. Remainder beneficiaries by definition do not have a claim against the trust until the primary beneficiary passes; only then, do they become a beneficiary able to take, rather than a remainderman."




2b. You and I touched on this and you gave me a link but it doesn't work however I need to ascertain whether or not (because that was not clear in one of the last questions I asked you) if the testamentary supplemental needs trust part of the will (springing trust) would be valid and protect either of my parents from not being able to obtain medicaid since they were way over 65 at the time of the consultation a few months ago. The attorney is stating that the SNT he has written is a testamentary trust and doesn't have the 65 yr old limitation. Or are they really the same thing? I can supply the language of the will if that would help but don't want to overwhelm you without first getting your answer.

For more infoI think this would be a self settled trust since it is their will and estate/assets right ( or does the trust make it 3rd party?) This article says that would make this invalid?http://elderlaw-lacey.com/articles/Special-Needs-Trusts-Ruthann-Lacey-GA-Bar-Journal-10-10.pdf

"Special Needs Trusts Third Party Settled Special Needs Trusts are those to which assets are contributed by someone other than the beneficiary.33 Typically they are created by family members of persons with disabilities, naming the person with a disability as the beneficiary. They may be created by transfers during life (inter vivos trusts)34 or in a Last Will and Testament document (testamentary trusts).35 As long as the beneficiary does not have the legal authority to revoke the trust or direct the use of the trust assets for his or her own support and maintenance, the trust principal is not considered to be the beneficiary’s resource for SSI and Medicaid purpose." "Further, due to the age restriction, if the beneficiary is 65 years of age or older it would be impossible to establish a self-settled SNT."

So is this a) self settled and b) invalid????

Related Estate Law Questions