Los Angeles, CA asked in Estate Planning for California

Q: Parents have a revokable trust which states if a child of theirs dies that share goes to remaining living children.

Her son insists that he should get her share. Dad is still living and won't change trust. Can my nephew dispute the trust after my dad passes.?

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2 Lawyer Answers
Nina Whitehurst
PREMIUM
Nina Whitehurst
Answered
  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in California

A: The plan of distribution you have described is perfectly legitimate and rather common. The nephew would not be able to challenge is just because he does not like it. To challenge it he would have to prove that the parents (makers of the trust) were not of their right mind when they signed the trust, and that is very difficult to do, usually.

1 user found this answer helpful

Julie King
Julie King
Answered
  • Estate Planning Lawyer
  • Monterey, CA
  • Licensed in California

A: There are two key legal principles everyone needs to know about.

(1) The law allows people to do whatever they want with their own assets. This means no one can force your parents (or you!) to give their assets to a specific person or charity they don’t want to. In fact, if someone does force people to update their trust against their will (meaning it isn’t a voluntary decision to update the trust), the person forcing the change could easily be liable for elder abuse.

(2) No one has an automatic right to receive their parents’ or grandparents’ assets when they pass away. So, your parents can have their trust say, if any of their children passes away before the last parent dies, that deceased child’s share of the estate lapses (becomes void) and will instead be divided equally among the surviving children. That’s actually a common provision. Other people choose to have their trust say, if any of their children passes away before the last parent dies, that deceased child’s share of the estate would instead go to the deceased child’s children in equal shares. But your parents didn’t choose that option. So, if your nephew is unhappy with your parents’ choice, there isn’t anything he can do about it because it sounds like it is your parents’ voluntary decision (but this assumes your parents have their mental capacity — as opposed to having advanced Alzheimer’s disease and not truly understanding what they’re doing.)

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