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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 35282
Experience:  16 yrs estate law, real estate. Wills/Trusts/Probate
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Can a Marital Trust be set aside?

Customer Question

Can a Marital Trust be set aside?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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Are you asking if someone could challenge it and have it set aside?

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Or if you can make changes to the trust yourself?

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Is this a revocable living trust?

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Do you have someone else in mind to be trustee?

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Did you tell the attorney you wanted him to be trustee?

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thanks

Barrister

Customer: replied 1 year ago.
1. NO
2 YES
3 IT DOES NOT STATE WHETHER IT IS OR NOT, OR AT LEAST, I HAVE NOT FOUND INFO IN THE WILL
4 I HAVE A FEW FRIENDS WHO I AM SURE WOULD BE GLAD TO SO ACT
5 NO, HE OFFERED TO DO IT
THANKS
RICHARD
Expert:  Barrister replied 1 year ago.

Ok, let me back up a bit. You mention a Will and a Trust. These are two completely separate estate planning documents..

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A Will has an Executor who settled the decedent's estate while a Trust has a Trustee who handles assets that are placed into a Trust and then distributes them to the beneficiaries upon a triggering event, usually the death of the Grantor (maker) of the Trust..

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So are we talking about a Will, a Trust, or both?

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thanks

Barrister

Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
WE STARTED WITH A WILL WHICH SEEMS TO HAVE TURNED INTO A TRUST, I HAVE SPECIFIC
BEQUESTS ALL IN THE SAME DOCUMENT.
Expert:  Barrister replied 1 year ago.

Ok, then this is a bit confusing because a Will and a Trust are two completely separate documents and are drafted separately..

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But a person can always change or revoke their Will up until their death. And if this was a trust, it would state in it whether the Grantor (maker) had the power to amend, modify, or revoke it. That is the primary difference in a revocable vs. irrevocable trust. So if it doesn't specifically state that it is irrevocable, then it can be changed or modified by you as the Grantor.

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Each document should be titled, either as the "Last Will and Testament of XXXX" or the "Revocable (or Irrevocable) Trust of XXXX Dated XXXXXX". So the document should have a title to it at the very beginning stating exactly what it is.

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But with either a Will or a Trust, there can be specific bequests to give certain items to specific beneficiaries.

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To be honest, it makes me a bit nervous that the attorney didn't go over the documents in minute detail with you so that you are crystal clear as to what has been drafted. The fact that the attorney also offered to serve in whatever role as administrator isn't normal either as he should have asked you directly who you wanted to nominate for that position. In either situation, Executor or Trustee, the person is entitled to be paid for their service so I suspect that may be the reason why the attorney "volunteered" to assume that role.

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My personal feeling is that if you have someone you have known for quite a while who you trust and who is a decade or so younger than you, that is a better choice for Executor or Trustee with you naming at least one additional person to that position as successor should your primary pass away.

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But in either case, based on your comments, it sounds like you could amend or revoke the document if you chose to do so.

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thanks

Barrister