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NextSteps: Trusting mom caught in 'irrevocable' trust
Sunday, August 20, 2006

Q: I am 72 and was widowed two years ago after 50 years of marriage. My daughter stays home with her two children, and her husband is an accountant. My son lives in Missouri and visits infrequently. My husband left me with nearly $2 million in assets, including our condominium, which is worth nearly $1 million. I have about $4,000 in monthly income.

My son-in-law has been telling me since my husband died that I am a "target" for someone who wants to marry a wealthy widow. While I have not thought much about getting married again, I have been getting some calls. So when he told me that I could put all of my assets into a "living trust" to protect myself and my assets, I didn't think it was a bad idea.

Since my husband and I moved to Florida from New Jersey and didn't have a lawyer here, my son-in-law recommended a lawyer who he said could help me. So I met with this seemingly nice man who explained how a living trust worked. I remember asking him what would happen if I did not like the way things were working out, and he told me I could take everything out of the trust so long as I was alive. At my death, he explained, my assets would be divided equally between my children the way I wanted. The lawyer suggested that my son-in-law be the trustee because, being an accountant, he understood what needed to be done, could prepare my tax returns for me, and that I need not worry about it.

So I signed the papers including transfers of my condominium, stock accounts and bank accounts into the trust, not really reading them carefully. Even my checking account was put in the trust.

Now, six months later, my life is a living hell. I have to ask my son-in-law for everything I want, and I have lost control over my assets. For example, I wanted to take a cruise, and my son-in-law told me I couldn't afford it. He complains when my electricity bill gets too high and tells me to turn down the thermostat. I was thinking of selling my condominium and getting a smaller place, but my son-in-law won't let me do it, saying I would have to pay too much in taxes.

I got so sick of it all that I went to another lawyer and found out that I can't change the trust or terminate it unless my son-in-law and both children agree. I called my son, all upset, and he sent me a letter agreeing. My daughter and son-in-law won't. I have now found out that the lawyer who did my work also represents my daughter and son-in-law. Here I am, at 72, a prisoner to my greedy son-in-law and daughter, who tell me they are doing this for me. Do I have any options?

-- Reader, from Florida

A: Unfortunately, you are not alone in your dilemma. We guess that when your accountant son-in-law read the AARP survey detailing how many children would not get an inheritance, he wanted to make sure he did.

If you did not sign a "revocable living trust," then you potentially have a problem. "Revocable" means that you, as the person who transfers your assets into the trust and designates who will receive them when you die, will have control during your lifetime so that you can change, revoke or terminate the trust any time you desire without asking anyone. It appears that your son-in-law's lawyer had you transfer your assets into a trust that may well be "irrevocable" -- meaning that you must get the consent of both of your children and your son-in-law before you can revoke it.

If irrevocable is as we believe it is, there are several difficult issues you must deal with: 1) You are limited to a $1 million lifetime gift exemption and, if your trust is irrevocable, you may have already made a $2 million dollar gift, meaning that you are obligated to not only file a gift tax return, but also may be required to pay gift taxes; 2) Since you may have made a gift to an irrevocable trust, should you need long-term care and your son-in-law does not want to pay for it and you apply for Medicaid within the next five years, you will be penalized for a long time; 3) Since you have apparently lost control of your assets, you will be stuck with the "allowance" your son-in-law gives you.

What to do? We believe that since the lawyer who established this trust for you also represents your son-in-law, he may have had a conflict of interest that should be explained to someone. Since this is not what you intended, you should seek out an experienced attorney who has no ties to anyone but you and see if he/she can put enough pressure on to get this resolved without a long legal battle.

Columnists' note: Taking the NextStep: Based on reader requests, from now on in our column, we will include the state (and sometimes the city, if we don't believe it will divulge the identity of our reader).

First published on August 20, 2006 at 12:00 am
Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist. You can learn more information about elder care law and write to the authors on www.nextsteps.net.
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