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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Estate Law
Satisfied Customers: 110357
Experience:  Experienced in Trust and Succession Law, including Louisiana Laws
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My husband passed away three months ago leaving a will and a

Customer Question

My husband passed away three months ago leaving a will and a marital trust that I am the sole beneficiary of (containing @2.5M). He also set up at my urging and blessing a separate trust for his 38-year old (but troubled) son from his first marriage that is to be funded with $250K from the estate. This son's trust also has a "no contest" clause as my husband felt his former wife and his sister would overreach after he passed away and urge the son to demand more money from me beyond the $250K, which is exactly what is happening. So far, no trusts have been fully funded as we come to terms with this extra money I am being asked to pay out. The money in the marital trust is intended to support me and not my step son but his bullying now tells me I will be bullied for the rest of my life as he waits for me to die so he can collect his money. I would like to collapse the marital trust. Is there a formula for determining a fair way to divide the assets now so we can all go our separate ways? My husband's will designates that 2/3's of any remaining assets when I die go to his son and 1/3 go to my daughter from my first marriage, all of which seems fair, as it reflects the proportion of assets we brought into the marriage. How can I figure out a fair amount to pay the step son now so we can part ways cleanly?
Submitted: 3 months ago.
Category: Estate Law
Customer: replied 3 months ago.
By the way, my husband and I were together 20 years, married for the last 14. His son was already an adult when we married. I was the primary caregiver for my husband's 18-month battle with cancer. I have had to give up my income in order to help him so my funds are dwindling as we sort this out. I thought I had a decent -- not great -- relationship with my inlaws until this started happening.
Expert:  Law Educator, Esq. replied 3 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
No, you will not be bullied the rest of your life UNLESS you give into him now. If you give into him now, he will continue to bully you because he knows he can get away with it.
You cannot dissolve an irrevocable marital trust without a court order, so that is not the choice you need to take. You have the money, you need to get a trust attorney and you need to file suit to disinherit him as the no contest clause states AND as part of that suit you need to obtain a no contact harassment order against him.
You thinking you can "part cleanly" with a person causing the issues you describe is a good thought, but not realistic in our experience with these similar types of cases. You need to spend the money on an attorney and he gets exactly what the will and trust left for him and not a dime more and you can keep him from further harassing you as well through that process.
Customer: replied 3 months ago.
Okay, thank you. I appreciate your perspective on this. Just a further question: I was told that there is a "formula" for disbanding a marital trust, giving a portion to me, a portion to the remainder beneficiaries per the terms of the will. Does such a formula exist or is it a free-for-all negotiation? Just need to know how to calculate that though I tend to think you are right. It's a good thought but not realistic. I do have a litigation attorney now and he is unequivocal on the kid being a bully and overreaching. That said, I need to put a counter proposal together to shut this down and move on.
Expert:  Law Educator, Esq. replied 3 months ago.
Thank you for your reply.
Once the trust becomes irrevocable on death of the grantor, there is a court order needed to dissolve the trust. If the trust dissolves, then you as surviving spouse and any of his descendants split the money equally. But in your case, the money needs to stay in trust and because of the no-contest clause you need to inform him that if he continues to try to contest the trust, he gets zero nor will his heirs. This is why you need to get yourself an attorney to represent the trust and shut him down immediately.

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