Cedar Falls, IA asked in Estate Planning for Utah

Q: 88 year old father's wife is ill and wants to sell their house (in her name) and put money in a trust, daughter Excec

We are concerned that our father is being cut out of things and will be left with nothing to care for himself. He is in good health. What can we do legally to protect our father.

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1 Lawyer Answer
Wesley Winsor
Wesley Winsor
  • Estate Planning Lawyer
  • Saint George, UT
  • Licensed in Utah

A: I am glad that you are concerned about your father. It sounds like they are dealing with some of the common issues that come with aging.

When I hear this, it doesn't make me too concerned. They may be trying to do some sort of Medicaid planning or VA planning. The first questions you need to ask in order to properly evaluate whether or not this is a good plan for your dad is 1) what are the terms of the trust and 2) what kind of trust is it. The terms of the trust will dictate whether your father is also defined as being a trustee and grantor. They have certain powers specific to grantor/trustees among more the common ones are to pull property out of the trust and use it however they like at least while they are alive and competent. If not, then it kind of sounds like she is creating her own trust where her assets or the separate assets at least will flow to her children after her death.

If your Dad isn't on the deed and there was never an understanding that he would inherit or share the residence (legally) with your Dad, then she won't have to. In Utah, though you can't completely disinherit your spouse. So, unless there was a pre-marital agreement signed stating that they were going to keep all pre-marital assets separate, there will be some value flowing to your Dad if he survives her. If the trust is irrevocable, it looks like they are trying to prepare some Medicaid and/or VA planning. Again you need to look at the terms of the trust to see whether your Dad's inheritance or current property rights are in jeopardy.

I hope this helps.


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