Elder Law | Mother wants trust amendment to exclude ex daughter-in-law

Dear Len & Rosie,

My mother has a living trust naming myself and my brother as her heirs. My brother just died, and my mother wants to make some changes. The trust was written to give my brother’s half to his wife if he died first. My sister-in-law moved out and divorced my brother while he lay dying in the hospital. Naturally, my mother does not want to leave that witch anything. She wants to cut her out of the loop and leave my brother’s half to his son and daughter.

I read somewhere that it is OK to write the changes on the typewritten page and just initial them. Will this make it legal until she has the time to get in touch with the company that wrote the trust to have the changes made permanent? Would it be OK if she asked me to write in the corrections for her (her handwriting is very poor), and then have her initial the changes in her own handwriting?

Sandy

Dear Sandy,

Your mother should not make hand-written pen-and-ink changes to her trust document, and you shouldn’t either. Your mother has a trust, which is very different from a will, and what you propose doesn’t really work for wills either. Your mother can amend her trust only by the procedure set forth in the trust document. Handwritten changes to the trust may not be legally effective.

If your mother is on her deathbed and must change her trust quickly before it’s too late, you could write out or type an amendment to her trust, and your mother could sign and date it, preferably before a Notary Public. After that, you should cross your fingers and pray that you did it right.

We cannot tell you exactly what the amendment should say without reading your mother’s trust first. It would be very easy for you to make a mistake that will allow your dear sister-in-law to sweep down on her broom and cart off as much of your mother’s property she can lay her knobby hands on. If you prepare the trust amendment yourself, your sister-in-law will accuse you of trying to steal her inheritance by unduly influencing your mother to disinherit her. The lawyers will make more money litigating your sister-in-law’s claim than they would have made drafting a simple trust amendment.

Your mother should seek the help of a lawyer to amend her trust. A lawyer will also be a neutral witness as to your mother’s intentions and her mental capacity. Your mother does not have to go back to the “company” that made her trust to have her changes prepared. In fact, since most “companies” selling trusts are trust mills that provide little in the way of actual legal advice, your mother would be better off having her amendment prepared by a trusts and estates attorney.

While you are at it, help your mother make sure that all of assets are in the trust, except for her vehicles, her personal checking account and her IRA’s and other retirement benefits. This will ensure that her estate will not have to go through probate. She should also review the beneficiary designations of her IRAs and any life insurance policies she may own.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at Tillem McNichol & Brown, 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the internet at www.lentillem.com.