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TORTUOUS INTERFERENCE WITH AN INHERITANCE, POWERS OF APPOINTMENT, DISCLAIMERS & MARITAL TRUSTS

Uncategorized Feb 4, 2014

A very recent Kentucky case dealt how money can split a family and how Trust Lawsuits can break out after parents died or when a Guardianship is needed.   This case has a myriad of Estate & #Trust issues at the heart of a   Probate Lawsuit:  Marital Trusts,    transfers of money   after death,    Powers Of Appointment,  and Disclaimers.    At the heart of this Probate Lawsuit were children fighting over millions.

REVOCABLE TRUSTS (AKA LIVING TRUSTS)

  • Sam and Julia were married
  • In 1991, Sam and Julia May each created revocable living trusts also known as living trusts
  • Each trust had 2 separate shares or funds, sometimes referred to as substrusts:
  • A Marital Trust & a  CreditShelterTrust  — a Credit Shelter Trust is intended to pass   wealth free of the Estate Tax and otherwise save a family Estate Taxes
  • Each would be the other’s success or trustee when the other died.  When they were both gone, their three children would be successor trustees.   Or so everyone thought………..

WHO INHERITS ? CHILDREN INHERIT BOTH TRUSTS: HALF OUTRIGHT & HALF REMAINING IN TRUST

  • Upon the death of the surviving spouse, the trusts passed to the three daughters
  • One half of each beneficiary’s share was to be distributed and the other half remained in trust

SURVIVING SPOUSE HAS POWER OF APPOINTMENT

  • When one died, the widow or Surviving Spouse    was the beneficiary of the other’s trust for his or her lifetime.
  • At the death of the second spouse to die, that spouse would have a Power Of Appointment  over the Marital Trust  :   a power to appoint, or give away, the principal of the trust — to anyone.

REVOCABLETRUSTS AMENDED & NEW TRUSTEES ADDED — MOTHER PASSES AWAY

  • A number of   TrustAmendments  were made in the 90’s
  • 3 children were made trustees of each of their parent’s RevocableTrusts   right now
  • The 3 children did not all sign an acceptance of the terms of the trust amendments
  • Julia May died on March 24, 1998,
  • Sam became the EstateExecutor, or what we call in Florida Probate cirlces the Personal Representative of the estate: what others call an #EstateAdministrator

POST DEATH, A LOT GOING ON: SURVIVINGSPOUSE DISCLAIMS MARITALTRUST, CREATES LLC

  • Sam signed a disclaimer of all his rights to the MaritalTrust
  • Sam disclaimed his #General Power Of Appointment
  • The #Disclaimer was filed with the Probate Court
  • Sam signed and filed a 2nd disclaimer on October 13, 1998
  • Sam creates a LimitedLiabilityCompany or LLC
  • LLCs are often used for EstatePlanning purposes to minimize the Federal Estate Tax. With proper planning for TaxableEstates in excess of $10.5 Million, LimitedLiabilityCompanies can  save you EstateTaxes,   permitting you to leave more to your HeirsAtLaw, NextofKin or TrustBeneficiaries

TRUST ASSETS TRANSFERRED TO LLC ALONG WITH REAL ESTATE — GUARDIANSHIP CREATED

  • Sam transferred the Marital Trust assets, including a brokerage account and real estate to the LLC, and then gave the LLC to his 3 daughters — this would later become a central point to the    ProbateLawsuit
  • Sam later became the subject of a    conservatorship,    or what we typically call in Florida a Guardianship
  • One of the 3 children died, so her husband opened up a #Probate and was named Estate Executor

TRUSTEE WANTS BROKERAGE ACCOUNT BACK IN MOM’S TRUST — PROBATELITIGATION

  • One of the Co Trustees  tried to transfer the brokerage account   from the LLC back into Mom’s Trust: the MaritalTrust.
  • Siblings filed a Probate Lawsuit
  • Enter the Probate Litigators

ESTATE LITIGATION: FIGHTING OVER MOM & DAD’S TRUSTS

  • Who should be Trustee ?
  • Were Dad’s transfers of property to the Marital Trust void ?
  • Was Sam acting as Trustee ?
  • Was the Disclaimer in-effective ?
  • Who gets the Trust Funds ?

The matter ended up going to arbitration and then to a 2 day Trust Trial, with two of the #beneficiaries ordered to pay damages out of their Trust Inheritance — one for $100,000.