Q: Mother passed but created trust with husband. she left 2 kids to be taken care of in trust.
Now her husband has changed the trust and created his will excluding me and my sister against my mothers wishes and leaves everything to his 3 sons. Everything he has was my mother's before they got together and after. What can we do?
A:
Dear Oakland CA:
I assume you have a version of the original trust, before your mother's husband changed it. (I also take it that her husband is not your father.)
I would get to an attorney right away, and here is why.
Normally, marital trusts are set up as in an A/B style. After the first spouse dies, the survivor's separate property and their one-half share of any community property pours into the "A" or "Survivor's Trust". The survivor has complete control of this A trust.
The "B" side is funded with the decedent's separate property and their one-half share of any community property. Normally, the survivor cannot change the terms of this trust. (There are a lot of variations, but this basic theme will suffice for this discussion.)
Now, the survivor can access the "B" trust, which normally pays income out to the survivor. The survivor also has limited rights to withdraw principal. Usually it is limited to a standard, for example care, maintenance and support, and requires that the survivor's trust be taped out first.
The trouble is that many times at the survivor thinks that they can amend the terms of the "B" trust, although they can not in actuality. Normally they do this on their own, and without consulting an attorney. (Actually, I would say that better than 90% of married couples actually do not understand how their trust works after the first death, other than "Oh, well it is supposed to save on taxes." But that is a story for another time.)
If this happens, it is possible to reverse the actions, but you need to act right away. There is a statute of limitations that begins to run as soon as you learn about what happened.
Accordingly, you should get to an attorney right away. If you do not know where to find an attorney, you can start with your local county bar association. Most county bar associations offer an attorney referral program where you get a consultation with an attorney for a nominal or no fee.
Gerald Barry Dorfman agrees with this answer
A: In addition to Mr. Last's fine explanation, I would just emphasize that once your mother passed, her portion of the trust became "irrevocable", meaning it could not be changed. The husband now changing it violates that rule. You really do need to get a lawyer right away.
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