Legal Question in Wills and Trusts in California
Irrevocable Clause in a trust
My father passed away very young and unexpectedly and supposedly there was no will. This is according to my Stepmother. The estate is very large, over 4 million dollars. I am an only child and she has no children of her own. They were married for 20 years and she has been in my life as an important person since I was 12. She has assured me that she has created a trust and that I am the sole benefactor. But has not provided me with any paperwork. I am meeting with her in 3 days and I plan to tell her that in order for me to be comfortable with our relationship, she needs to provide me with something that can not be changed. Can a trust have an IRREVOCABLE clause? Whether it is a certain amount of money that I will inherit upon her death for ex. 1 million or a portion...say 1/2 or 1/3 of the estate? I researched irrevocable trusts on the internet and it doesn't seem like she'd go for that. But if a portion of a living trust or some other type can be made unchangable or irrevocable.....I am just concerned that she'll draw a trust up, make me a beneficary and then change it once she remarries. Please let me know if this is possible.
thank you in advance for any help.
2 Answers from Attorneys
Re: Irrevocable Clause in a trust
The trust can be irrevocable, or a portion of it, but you're correct in that few people wish to do that. I'd recommend talking with an attorney before talking with her, as you should know what your entitlement to your father's assets now would be, if anything. If he had separate property at the time of his death, as opposed to community property shared with his wife, you're entitled to a share of that now, and would have to petition the probate court for that. Knowing the type of property involved would help in working out any agreement with her regarding the inheritance.
Re: Irrevocable Clause in a trust
any trust that is prepared should be prepared by an attorney to ensure that it accomplishes the purposes for which it was formed. before it is implemented you should have the trust agreement reviewed by your attorney to ensure that you understand it correctly.
a trust can be irrevocable in whole or in part, but keep in mind that a trustee could utilize trust assets improperly. if this occurs the trustee is responsible, but if the funds have been dissipated or the trustee has removed the trust assets (and herself) to an unknown location, there may be no practical way to recover the assets. for this reason an independent trustee should be used.
finally, if there was no will a probate should have been opened. under the California laws of intestacy, you are entitled to a share of your late father's estate. UNLESS all assets were community property or held in joint tenancy.
you can open a probate yourself (with the assistance of an attorney) to obtain further information and compel a determination of how the estate should have been distributed.
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