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I am one of the trustees for my grand-aunt trust. She passed

away in May and I...
I am one of the trustees for my grand-aunt trust. She passed away in May and I was just informed that her trust did not follow her will. The lawyer I used said she wanted her trust left to her remaining descendents which are 5 of her nieces and nephews ranging in age from 71 to 79. I MOVED all her assets in to a irrevocable trust when she was going in to a nursing home. I also have power of attorney. Her will had my mom as the beneficiary. She is 76 years old one of the 5 survivingriv descendents. My second cousin and I have taken care of my aunt for the last 12 years. She always thought right up until she died that my mother was handling all her financial issues and no one in the family knew her trust was leaving her approximately $300,000 to 5 nieces and nephews. She literally trusted no one but my mom and me. I was the one who got an eldercare lawyer to try to save her cost she was paying for assisted living. I am wondering if her lawyer acted legally by never telling me she had a conversation with my aunt about leaving the trust to her 5 surviving relatives? It took me over a year to get her assets all transferred in to her trust. She was only in a nursing home for 2 years and probably would have went through her assets before the 5 years so it was not even protecting her assets. Just looking for a second opinion if this was done legally and professionally. Thank you. DEBBIE
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Answered in 10 minutes by:
7/7/2013
Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 38,724
Experience: 17 yrs estate law, real estate. Wills/Trusts/Probate
Verified
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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I am wondering if her lawyer acted legally by never telling me she had a conversation with my aunt about leaving the trust to her 5 surviving relatives?
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When an attorney has discussions with a client regarding their legal matters, they are strictly confidential and the attorney is prohibited from divulging any of the information discussed to anyone unless the client directs them to do so. So if aunt didn't want anyone to know about who she left her assets to, then the attorney would have been prevented from disclosing that information.
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The trustee of a trust does not have to be notified of all changes to a trust if the grantor chooses not to do so. Once they agree to be a trustee, they are agreeing to execute any directives in the trust that the grantor makes. They don't have to be informed or consulted regarding any changes, although most times the grantor will do so.
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When you say her trust did not follow her will, that is not unusual because a will disposes of assets that are in the testator's name when they pass. Assets that are in a trust have been transferred out of the testator's name and into the trust's name. Since trusts are completely confidential, many people have different directives for their trust than they do in their wills, which are public documents.
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So if the attorney did not notify you of the changes made in the trust, then assuming they were following aunt's wishes, then the attorney acted properly, both legally and ethically.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 38,724
Experience: 17 yrs estate law, real estate. Wills/Trusts/Probate
Verified
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Customer reply replied 4 years ago

The issue is I am not sure my aunt knew who her descendents were when she talked with the lawyer. One niece who is a twin of the cousin who helped CARE for my aunt lived in Florida for the past 55 years and my aunt never saw her. She also did not want her niece to visit her. She really did not trust other people at all. She was also hospitalized for psychiatric episodes and was put on a couple of anti psychotic drugs just before meeting with the lawyer. S o I am questioning her understanding of who she thought her relatives were.

From a purely legal perspective, if she had not been declared legally incompetent by a judge, then she would be presumed competent to make any changes that she wanted to.
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The attorney does have an ethical and legal duty to make sure that the client is competent and understands what they are doing. But since they would have met in private, there is no way of knowing if the attorney made sure she was competent or not. Presumably aunt contacted the attorney and not the other way around so that would be an indicator that she knew what she wanted and what she was doing.
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The changes could be challenged if it could be proven that she was mentally incompetent at the time she made the changes. But since any changes would have likely been witnessed by the attorney and a notary public, it is a certainty that they would testify that she was competent and understood what she was doing. So unless there is conclusive evidence otherwise, maybe from a doctor, that she was incompetent, it would be very difficult to void her changes.
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Thanks
Barrister
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Customer reply replied 4 years ago

There were never changes made this was how the original trust was worded. I went out in the hall for a few minutes while the lawyer spoke to my aunt. I just think she needed to make sure my aunt understood who her descendents were. I

Ok, then if you were there with her at the time she made the trust and decided on the beneficiaries, then it would be hard to argue that she was incompetent at that time. The attorney only has to make sure the client is competent, not question the client about if what they are telling the attorney is what they really want. The attorney's job is to just do what s/he is told to do once s/he determines the client is competent.
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So if aunt said "I want everything to go to my descendants" the attorney wouldn't have had any legal duty to sit down with aunt and go over who her descendants were... The attorney would presume that aunt would already know who they were since they were directing the attorney to make them the beneficiaries of the estate.
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I realize that it is unfair for relatives who have not helped at all with aunt to share in her estate, but I don't see any legal grounds under which her directions could be challenged at this point.
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Thanks
Barrister
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Customer reply replied 4 years ago

Thank you for your help. Even though it is not the answer I was hoping for, it clarified that the lawyer did act in an ethical and legal manner. I will rate this question and answer with high scores.

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