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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 36398
Experience:  Texas lawyer for 30 years in Estate law
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Hey Pearl, My grandfather named me the executor of his trust

Customer Question

Hey Pearl, My grandfather named me the executor of his trust 7 years ago. I helped him write the trust. He put in the trust that when I became executor upon his death I would receive 5 acres of land of my choosing. 2 months prior to his death my Uncle was named executor. My grandfather was very ill and had a brain tumor. The trust is written to mainly benefit the grandchildren. My uncle will not switch it over to my name nor resign as executor. I'm not allowed to challenge or I lose any rights to being a benificiary. My uncle is now telling me that he is going to wait 18 months to do anything with the trust. Can he do this?
JA: Dealing with estate issues can be complex, but getting accurate information now will save you headaches -- and potentially heartache! -- down the road. Because laws vary from state to state, could you tell me what state is this in?
Customer: Oregon
JA: Have you consulted a lawyer yet?
Customer: No, but the trust is held by an Attorney
JA: Is there anything else the Estate Lawyer should be aware of?
Customer: There is property that is listed that receives rental income and property that is not listed in the trust that receives rental income as well. My grandfather wanted my uncle to receive the income from these properties as part of his retirement. However it is not listed that way in the trust. Also, My uncle believes now that he is executor he gets 6% of everything he sells as well as the property that is supposed to go to me when I become executor.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Estate Lawyer about your situation and then connect you two.
Submitted: 5 months ago.
Category: Estate Law
Expert:  RayAnswers replied 5 months ago.
Hi and welcome to JA. Ray here to help you tonight. You may consider a local trust lawyer to challenge here.The language does not prohibit a good faith challenge based on lack of capacity and undue influence.By such a challenge sometimes you are able to have the amendment or other documents declared void by the court.The trustee here can also be removed for breaches of the fiduciary duties towards you and the trust and this includes self dealing. There are several possibilities, a trust challenge, removal of trustee, a civil suit against the trustee.All of these require a lawyer to bring on your behalf and seek a better outcome.You do have rights in all of this and options through the courts. I appreciate the chance to help you today.I wish you the best here.Thanks again.
Expert:  RayAnswers replied 5 months ago.
Trust lawyer for you here
Expert:  RayAnswers replied 5 months ago.
130.515¹ UTC 604. Limitation on action contesting validity of revocable trust• distribution of trust property(1) A person must commence a judicial proceeding to contest the validity of a trust that was revocable at the settlors death in the manner prescribed by ORS 12.020 (When action deemed begun) within the earlier of:(a) Three years after the settlors death; or(b) Four months after the trustee sends the person a copy of the trust instrument and notice informing the person of the trusts existence, of the trustees name and address and of the time allowed for commencing a proceeding.(2) Upon the death of the settlor of a trust that was revocable at the settlors death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for distribution of the property unless:(a) The trustee knows of a pending judicial proceeding contesting the validity of the trust; or(b) Any person has notified the trustee in writing that the person might commence a judicial proceeding to contest the trust and a judicial proceeding is commenced by the person within 60 days after the person gives the notification.(3) If a trust is determined to be invalid, any beneficiary who received a distribution from the trust is liable to the person entitled to the distributed property for the amount or value of the distribution. [2005 c.348 §49]
Expert:  RayAnswers replied 5 months ago.
Recent Oregon case.. Trust Contests (Section 406)Ward v. Fogel, 768 S.E.2d 292 (N.C. Ct. App. 2014)Jo ***** ***** and ***** ***** were married in1987 in North Carolina, moved to Florida in2002, separated in 2009, and Robertfiled for divorce in Florida in 2010. During the marriage,Robert and others formed a business in West Virginia called Environmental Protection Services,Inc. (“EPS”). Robert had a fifty-percent interest in EPS, which he conveyed to the Robert E.Ward, III Irrevocable Trust Agreement (“REW trust”) in 2005. Robert was the grantor of theREW trust. The trust contained a clause stating that income would be provided to Jo Ann as the10 beneficiary so long as she remained married toRobert. Robert’s son (JoAnn’s step-son) and anygrandchildren of Robert were the remaining beneficiaries. ***** ***** and Mark Fogel werenamed co-trustees of the REW trust. In addition, in 2006, the Ward Family Irrevocable TrustAgreement (“WF trust”) was created, with Jo Ann as grantor and Robertas beneficiary. Tocreate this trust, Robert transferred interests in a number of LLCs spun off from EPS to Jo Ann,whom he had transfer those interests into the WF trust.After the divorce, Jo Ann filed anaction against Robert, Robert’sson, Mr. Wright and Mr. Fogelin North Carolina (the situs ofthe trust) alleging causes ofaction for fraudulent inducement,constructive fraud, and breach of fiduciary duty. The trial court entered judgment against Jo Annand she appealed. The only relevant matter to theUTC on appeal relates to Jo Ann’s claims forbreach of fiduciary duty and constructive fraud asthey relate to the REW and WF trusts. Underthe North Carolina UTC, a trust is voidable “tothe extent that its creation was induced by fraud,duress, or undue influence.” N.C. Gen.Stat.§ 36C–4–406 (2013) (UTC § 406). In this case, JoAnn was a beneficiary of the REW trust and was not induced intoagreeing to its terms. TheCourt found that there was no authority indicating that the grantor of a trust owes a duty to thebeneficiary of a trust to refrain from including clauses that maydivest the beneficiary's rightsupon the happening of a certain event. However,in regards ***** ***** WFtrust, the Court foundsufficient evidence to establishfraudulent inducement relating tothe trust’s creation. Thus, thecase was affirmed in part, reversed in part, and remanded.

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