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My parents created an irrevocable trust in ny leaving their

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house and all possessions to...
My parents created an irrevocable trust in ny leaving their house and all possessions to the grandchildren upon their 21st birthday, me and my sister were named cotrustees and the deed changed to reflect same. After my father died, and without my knowledge, my sister forced my 83 year old mother to change the trust and list my sister as sole trustee and sole heir. The same lawyer that drew the trust drew the revision, the revision was done over a year ago. When questioned recently, The lawyer sent a photo copy of a letter and return receipt mailing insinuating I had been notified, but he could not produce the returned signed receipt. My question is how can a lawyer so drastically change an irrevocable trust without notifying the heirs, and it is my understanding that a trust cannot be created if the sole beneficiary is the sole trustee (see ny court of appeals woodward v. James) please give me some direction as my sister stole this house from the grandchildren.
Submitted: 2 years ago.Category: Estate Law
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6/11/2015
Estate Lawyer: Law Educator, Esq., Attorney replied 2 years ago
Law Educator, Esq.
Category: Estate Law
Satisfied Customers: 119,599
Experience: Experienced in Trust and Succession Law, including Louisiana Laws
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Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
You are correct in that it appears that the trust was improperly changed. An irrevocable trust is one that is managed by a trustee for the benefit OF SOMEONE OTHER THAN THE TRUSTEE and while an irrevocable trust cannot be terminated, it can be changed to modify beneficiaries or trustees. If there were co-trustees the attorney has to prove he actually notified you, anyone can produce a copy of a letter, but he has to prove he actually sent it and without a return receipt he cannot do so.
Unfortunately, to challenge this, it means you will now need your own attorney and you would have to file suit in court challenging the trust and the change and potentially even suing the attorney for malpractice in how he did this without proper notice to you as a co-trustee. This would require a court action now this was changed in order to have the original trust returned to being the valid trust.
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Customer reply replied 2 years ago
Thank you for you response, unfortunately I cannot seem to find an attorney who agrees, would you be able to be a bit more specific? Possibly with one or two precedents? This problem arose because the sister who had the trust changed is now trying to evict our tenant whose lease was signed by my brother, the co-trustee, the judges in landlord tenet court seem to want to rely on her invalid docs and not the deed of record which shows both my brother and sister as owners as Co trustees, we have told the court that the deed is what takes precedent, but we're only able to get a short postponement. We really need something the judge can't ignore, thankyou
Estate Lawyer: Law Educator, Esq., Attorney replied 2 years ago
Thank you for your reply.
Without being able to review the trust, which we cannot do on this site, I could not be as specific as you want. We can give you the general principles.
Under the NY Uniform Trust Code SECTION 7-A-4.11. MODIFICATION OR TERMINATION OF NONCHARITABLE IRREVOCABLE TRUST BY CONSENT.
[(a) [Unless the terms of the trust provide otherwise, a noncharitable irrevocable trust may be modified or terminated upon consent of the settlor and all living beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust.] A settlor’s power to consent to a trust’s modification or termination may be exercised by an agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust; or by the settlor’s guardian with the approval of the court supervising the guardianship if an agent is not so authorized. [This subsection does not apply to irrevocable trusts created before or to revocable trusts that become irrevocable before [the effective date of this [Article] [amendment].]
(b) A noncharitable irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.
[(c) A spendthrift provision (whether by reason of the terms of the trust or by operation of law) is not presumed to constitute a material purpose of the trust.]
(d) Upon termination of a trust under subsection (a) or (b), the trustee shall distribute the trust property as agreed by the beneficiaries.
(e) If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection (a) or (b), the modification or termination may be approved by the court if the court is satisfied that:
(1) if all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and
(2) the interests of a beneficiary who does not consent will be adequately protected.
(f) For purposes of this section, a disposition contained in a trust created on or after September first, nineteen hundred fifty-one, in favor of a class of persons described only as the heirs, next of kin or distributees (or by any term of like import) of the creator of the trust does not create a beneficial interest in such persons.
See: http://www.hofstralawit.org/eptl-scpa/wp-content/uploads/2011/12/UTC-Art-1-11-NY-UTC2.doc
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Customer reply replied 2 years ago
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Review Legal Documents. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Estate Lawyer: Law Educator, Esq., Attorney replied 2 years ago
Thank you for your reply.
I would be glad to review the documents for you, but I have to send you an offer which you must accept in order to continue.
New York law (EPTL Sec. 7-1.9) allows an Irrevocable Trust to be amended if you and the beneficiaries of the trust (your children) agree to the amendment. If you have a good relationship with your children this gives you complete flexibility, even though the trust is "Irrevocable."
Second, while the grantor cannot revoke, amend or terminate the Irrevocable Trust by themselves, as a practical matter, they can still retain tremendous control to completely eliminate any beneficiary of the Irrevocable Trust or increase or reduce their share, solely in your discretion through the use of a "Limited Power of Appointment" even if or the children don't agree.
So if your mom had mental capacity to make the changes, this could be part of your issue with getting anyone locally to take your case.
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Customer reply replied 2 years ago
I am interested in having you review the documents, how would this be accomplished? And how extensive would that review be? Would it include enough information for me to define an initial summons and complaint? Or would it be generic along the lines of " yes, the documents were changed improperly and you need to get an attorney?" I really need the whys and hows.
Estate Lawyer: Law Educator, Esq., Attorney replied 2 years ago
Thank you for your reply.
I sent you an offer for doing so and upon accepting the offer, I will reply to you with an email address to send it to me.
However, as the experts of this site are not site employees, we get no credit for spending time with customers unless customers leave positive feedback (most customers do not know this). Thank you.
We cannot represent you, we can only look at the documents and answer specific questions you have about the document. I also provided you the NY laws above on your matter.
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