Q: What paperwork do I need to file in order to prove the validity in a completely restated and amended trust?
It is being argued that my grandmother was not cognitive/incompetent when she restated and amended her trust. She then later gifted me her house that I’ve lived in for almost two decades in form of irrevocable inter vivos gift deed. She was not shy about wanting her home to stay with her family yet my brother and the successor trustee Got her into a facility to then try to sell her home against her wishes, which is why she created the gift deed. Is there anything in particular I need to prepare for? I do not have the means for a lawyer.
A:
Ashburn, VA:
This was posted in estate planning for California. While California may be the proper jurisdiction to challenge the Trust (it depends on which State's law controls interpretation and validity of the Trust), it may not control the real property if it is located in the Commonwealth of Virginia. (Real property disputes are normally handled by the State in which the real property is located.) You may wish to re-post this in the VA forum as well.
Beyond the jurisdictional question of which State's law will control, incompetency of the Trustor/Settlor (person who creates and funds a trust) cases are complete and very fact dependent. The involve questions like: Was the Trustor ever declared incompetent? Was the Trust (or in this case Amended and Restated Instrument) drafted by an attorney? If so, what does the attorney have to say about it? Does it distribute property in an unusual way? If so, what were the Trustor's reasons? Does the Trust favor someone who had the ability to influence the Trustor, like a caregiver. How long between the execution of the documents and the person's death? What do the medical records say?
And then there are the procedural rules of whichever court the matter is heard from.
This is not one that I would recommend that you attempt to represent yourself on, and recommend that you discuss it with an attorney as soon as possible. You might try your local State or County Bar association, which may provide a referral service for free or low cost consultations. Also, attorneys may agree to work out a payment plan or other method of covering their bill.
Best of luck.
Bill Sweeney agrees with this answer
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