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Ask LegalGems Your Own Question
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 9908
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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If a woman is the trustee of her mothers estate and the

Customer Question

If a woman is the trustee of her mothers estate and the trustees sister was excluded from the mothers’ will, can the trustee write a note giving the sister interest in the estate? Will it be legal if she hand writes that she wants her sister to have half
the estate including a house and than have it noterized with the wording irrevocable? Does she have to wait until the assets are given to her or can she write it before as the trustee? Would she need to also do a grant deed from the trustee to the sister for
the house or will the note be enough inssurance that she will not change her mind.
Submitted: 1 year ago.
Category: Estate Law
Expert:  LegalGems replied 1 year ago.

A trustee has a fiduciary duty to distribute the assets according to the terms of the trust; as such a trustee cannot unilaterally distribute assets to an individual not designated in the trust. However, an heir may "disclaim" all or a portion of an inheritance; it then will pass to the next intended heir; if no designated heir then it would go via the laws of intestate succession (ie next of kin). This can be done before the assets are actually distributed so the trustee can ensure that it is distributed to the correct party. If there is real property involved, then a deed would need to be filed (typically executed by the trustee- a trustee deed) so that it becomes part of the public record pertaining to the party.

Expert:  LegalGems replied 1 year ago.

Did you have any questions on the above?

Customer: replied 1 year ago.
The sister ,Trustee, had her mother (not in her right mind} write the sister out of the estate. The passed mother wrote in the will that the sister was not to get anything. However, being that the trustee (sibling) had her mom 4 days before her death write everyone out the will except her makes a case for indue influence which she is feeling responsible for. She wants to make things write with a note tonight stating all is to be shared. I don’t think the trustee excluding themselves will work in this sircumstance being that the sister was written out of the will. For the meeting with her sister (the trustee) tonight before she leaves town what should we do?? A noterized note, A grant deed putting her on title, this will be one of the last chances bfore she leaves and then out of sight out of mind and we will be forced to sue her for undue enfluence which we would rather resolve now. Is there any possible solution
Expert:  LegalGems replied 1 year ago.

The only possible solution, without suing for undue influence, is for the named heir to disclaim the inheritance. If that is the sole heir, and the trustee makes no provision in the event of a disclaimer, then the trust would no longer govern, and the laws of intestate succession would apply.

Customer: replied 1 year ago.
what about a grant deed? and are you saying that a hand written note that is noterized can not be done by a trustee of an estate. It will carry no wieght because she is not legally obligated to give anything out of the trust? I thougt that you said she could grant deed the real propery. If we sue for undue enflence will they revert to the wishes of the mothers’ last will or to the laws intestate succession.
Expert:  LegalGems replied 1 year ago.

A deed can only be signed by the original owner of the property, or by an executor/trustee- IF it complies with the terms of the will/trust. A handwritten notarized note by the trustee will not serve to change the terms of the trust- only the settlor may change the terms of the trust. The trustee is obligated to comply with the terms of the trust. If one wins an undue influence lawsuit, the laws of intestate succession then are applicable.

Customer: replied 1 year ago.
In the will it allows the property to be sold, but does not mention grant deeded. We really do not want to sue unless it is neccessary. We would be satisfied with just 50% of the realestate. If she contacts her lawyer and ask if this could be done, how will this happen. will her lawyer need to be envloved. Her lawyer told her that it was a conflict of interest to help her in this regard. should both sister go to another attorney or just have the trustee sister deed one half of the property to her other sister using a grant deed. Please give us a direction we have been dealing with two deaths and estate problems on both end.
Expert:  LegalGems replied 1 year ago.

A grant deed can only be used to convey the property to the heirs- or to a third party that purchases it. The trustee does not have the authority to unilaterally sign a deed that is not in conformity with the trust.

It would be a conflict; and a breach of the attorney's ethical duties, to draft a deed that does not comport with the trust; the trustee can also be sued for doing so.

The trustee is obligated to follow the instructions of the trust unless the trust is invalidated.

Customer: replied 1 year ago.
Why couldn’t that third party be her sister for a price so determined by the two sisters. Does it have to be for the appraised price of the house and can she sell a share in the house.
Expert:  LegalGems replied 1 year ago.

The third party could be anyone- so long as the property is sold for fair market value; as the trustee has the duty to sell the property for fair value as determined by an independent appraiser. If the trustee is an heir, then that portion can be sold for whatever price the individual chooses unless the trust states otherwise.

Expert:  LegalGems replied 1 year ago.

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