Fong Law Group

Can I Challenge My Mom's New Trust Based on Undue Influence?

I have received this question from a reader: What can I do if I believe that my brother used undue influence on our 95-year-old mother to get her to amend her trust? He took her to a lawyer to change the original trust, which split everything evenly between my brother and me. The new trust now goes to him and then to his kids. My mother began experiencing dementia three years ago. Before this, she always treated everyone in the family equally. He also had her sign a power of attorney and hasn’t let me see or speak to her for two years.

You can certainly challenge the new estate plan. The question is whether it is easier to do it now or after your mother’s death. To do it now, you would probably need to seek a conservatorship over your mother. This would likely be very expensive, but it would help you preserve the evidence of your mother’s weakened cognitive ability and your brother’s influence over her. The other approach is to wait until after your mother passes away and then challenge the trust through your mother’s estate by asking to be appointed as her personal representative. While the trust is not a probate asset, as personal representative you would have standing to question the recent change. You may also have standing as a beneficiary of the original trust. This also is likely to be an expensive, difficult litigation. One potential advantage of pursuing the case after your mother’s death is that it would be easier to find a lawyer who would take the case on a contingency basis, at least if there’s enough at stake to make it worth the lawyer’s effort.

Did You Relocate for Retirement? Add This to Your To-Do List

“You have estate planning documents prepared in the state of your former residence but are now a Florida resident.”

Maybe you have moved to Arizona or another nice warm sunny state. Here’s a question: do you need to get your estate planning documents redone? Maybe. Should you have them reviewed by an estate planning attorney in your new retirement state? Definitely, advises TC Palm in the article that asks “Should new Florida residents update their out-of-state estate planning documents?”

When it comes to your will, in the state of Florida, as long as your will from another state is valid under that state’s law, it will be honored in Florida.

However, there may be laws in Florida that could cause some problems with the out-of-state will. That applies to other states as well.

Here’s a good example. Let’s say you now own a home–known in Florida as a “homestead”—and your out-of-state will transfers your residence at the time of your death to a trust for the benefit of your spouse and your children.

The only person who can receive a homestead in Florida is the spouse. If your will from out-of-state was used, the house would result in a life estate going to the spouse with a vested remainder to your children. This doesn’t achieve the result you wanted: to have the property controlled by a trustee and not your spouse and children. If this was a second marriage, the potential could be a family blow up, even litigation. Even in a first marriage, if the children and their mother differ on what should happen to the family homestead, there would be trouble ahead.

Taking that example further: What if your out-of-state will directs the sale of your home in Florida and distribution of proceeds in equal shares to your children? If you die with creditor claims, you lose the homestead exemption for creditor protection purposes. Your children’s inheritances could then be at risk.

More food for thought: if your out-of-state will appoints a non-relative who is a resident of the state where your will was originally executed to serve as your personal representative, they won’t be able to do much in Florida. That’s because they are not eligible to serve as a personal representative under Florida law, which only allows a non-relative to serve, if they are a Florida resident.

Every state has its own laws, and while some issues are fairly consistent from state-to-state, that is not always the case.

Once you’ve settled into your new home, make an appointment with an estate planning attorney, who has the experience in your new state. They may not have to completely overhaul your current plan, but there may be things that need to be addressed.

Reference: TC Palm (Nov. 14, 2018) “Should new Florida residents update their out-of-state estate planning documents?”