Legal Question in Wills and Trusts in Kentucky
Will construction
My father passed away leaving a holographic will. The only thing that doesn't go to his wife by joint survivorship is stock he owns in a family-owned
corporation with real estate holdings. He outlines in broad strokes in the will that he is essentially creating a trust for his wife for the remainder of her life. Though the word ''trust'' is never used, he states she is to receive the income he would have received from rental property owned by the corporation. Should any assets of the corporation be sold, that money is to be invested by the executors and she is to receive the interest from those investments. When she dies, all monies are to be divided equally between his 3 children. The wife is not the mother of the children. When she and I took the will to his lawyer to make the probate application, he advised that after the will is proved and probated, we should go to Circuit Court and file a Declaratory Judgment Action asking the court to construe the will, aaking his intent clear and concise. Although she and I are in agreement in how the will is to be administered, she refuses to have the will construed and has fired the lawyer. She threatens to renounce the will if we don't go along. I'd appreciate your thoughts.
1 Answer from Attorneys
Re: Will construction
I cannot advise your on personal preference. The term "Trust" describes a set of facts where one person or entity has the"legal" title to property and the benefit (or income)from that property or interest is held by someone else. It would appear that there was a pre-existing arragngement with the Corporation that paid your father this money and he gave that right to his wife. the Corporaton is the legal owner. A lot depends on the structure of the Corporation but it seems that your father provided for this and the Corporation is obligated. I would not hurt to have a second opinion but in reality, your step-mother drives the ship on this question. I would think that your father's original attorney would be in the best position to probate the estate but again, that would be my preference. If your step-mother is satisfied and the Corporation can do it, then who are we to question the situation. This is apparently something that was discussed between them prior to his death. Just some thoughts.
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