Required To Petition To Be Trustee, Despite Instruction In The Will

[lauren0309]

My mother left a will with the proceeds of her apt. being divided among her 5 grandsons. She stated in her will that she didn't not want me, as the Executor to have to post Bond or be Trustee. My lawyer said when he went to court to submit papers for probate, the clerk there told him I have to petition to be Trustee, even though my mother said that was not her wish. Was this the right thing to do, making me petition to be trustee? I now have to post $3,500 bond before I can get a letter of Testamentary to sell her apartment. I went to another lawyer yesterday for consultation since my lawyer never returns me phone calls (I havent spoken to him since March), and the will has been out of probate since February. This whole Trustee and Bond issue is holding things me up from selling the apt. The other lawyer I went to for advice yesterday said I should have never filed for Trustee but this is what my lawyer said I have to do and I followed what he said. The other lawyer said it would cost too much to undo everything now. My question is, even though the money is going to be in Trust for the grandchildren until they reach 21 years of age, do I still have the authority to give them the money beforehand since my mother wanted them to use it for their college expenses. I know I have bank accounts for them in Trust and I have the authority to touch their money but they don't until they are 21. Does this work the same way?

[seniorjudge]

The court's rules come first and outweigh ma's wishes.

[lauren0309]

But my main question is, even though the money will be in a trust fund, can I still give the kids the money to use for college even though they are 19 and 20? Or do I have to wait till they are 21 to release the money to them?

[lwpat]

Depends on the terms of the trust and we have no idea what those are. Ask your new attorney. Sounds like you have to wait until they are 21 unless the trustee and the beneficiaries have the ability to change the terms of the trust.

[aaron]

Was there an actual trust which had been drafted by your mother, and which was to be funded by her will? Or is it that the will referenced money being held in trust, but no trust was ever created?

[lauren0309]

No trust was every created. My mother specifically said she didnt want the money be held in trust.

[aaron]

It sounds like the problem isn't with the lawyer (unless he should have recommended an alternative to the court's placing the proceeds from the apartment in trust), but is with the inadequacy of the estate plan. Creating a trust to hold bequests to a minor pursuant to a pour-over will, or creating a living trust which places assets entirely outside of the probate process, can be an excellent mechanism for simplifying estate administration and ensuring that your wishes are carried out. But if you don't make such provisions, for all but small inheritances with the threshold determined by state law, the court will have to ensure that a minor's inheritance is protected, and state laws governing the judge's actions may take precedence over inconsistent provisions of the will.

[lauren0309]

When there are minors involved receiving assets in a will, does a lawyer need to file a corpus of trust? I am the executor and my mom left money to my kids and she didnt want the money held in trust and wanted no bond to have to be posted. My lawyer said he was told by the Clerk at the Court since minors were involved I needed to Peititon to be Trustee.

I went to another lawyer this weekend for a consultation and he told me it was not necessary for me to have to file to Petition to be Trustee since my mother stated she did not want it. Who do I listen to?

[Mr. Knowitall]

Discuss with lawyer #1 what lawyer #2 is telling you. If that doesn't clarify things, take lawyer #1's responses to lawyer #2 and ask for further explanation.

Both of your lawyers know more about the details of your case, and should know more about the application of your state's laws to your situation, than anybody here.