Can I ignore a trust that was set up in a will?
July 10, 2022 9:29 AM Subscribe
I'm dealing with a will that has a trust set up for someone, and I want to ignore that part of the will. Can I do this? Will anyone care?
I've tried to Google this, but everything I find assumes that someone is trying to change or take money from a trust to keep it from someone else. What I want is sort of the opposite - I want to be able to give money to someone named in the will, but ahead of schedule.
The scenario: I am the executor of my recently deceased parent's estate (my other parent died several years ago, so they are not relevant). The will names three beneficiaries: myself, my younger sibling, and their child, who is 20. We each get a third of the final assets of the estate; at most this will be just over $200,000 USD, spilt three ways.
The will includes a trust that says the child of my sibling cannot access their share of the assets until they are 30. I sort of understand why my parent wrote this into their will, but I also sort of don't. The circumstances at the time the will was written are not the circumstances now. Nothing nefarious, just some family drama that has long been resolved.
My question: can I just ignore this trust and give the child of my sibling their share of the money now? This won't be a life-changing amount for them, but it will help them move towards being independent, buying a car, paying for school, etc. I feel that by the time they turn 30, 10 years from now, they could have already put this money to better use instead of letting it sit there.
However, I don't want to do this if there will be some kind of penalty if someone finds out. I'm sure my sibling and their child would keep quiet, but they live in the same town where a lot of my parent's extended family resides and people like to be nosy and gossip.
Other details: the will is filed in the US state of Georgia, and is currently under solemn probate while the assets are sold off. I have an attorney handling probate, but I don't want to involve them in this unless I need to.
I've tried to Google this, but everything I find assumes that someone is trying to change or take money from a trust to keep it from someone else. What I want is sort of the opposite - I want to be able to give money to someone named in the will, but ahead of schedule.
The scenario: I am the executor of my recently deceased parent's estate (my other parent died several years ago, so they are not relevant). The will names three beneficiaries: myself, my younger sibling, and their child, who is 20. We each get a third of the final assets of the estate; at most this will be just over $200,000 USD, spilt three ways.
The will includes a trust that says the child of my sibling cannot access their share of the assets until they are 30. I sort of understand why my parent wrote this into their will, but I also sort of don't. The circumstances at the time the will was written are not the circumstances now. Nothing nefarious, just some family drama that has long been resolved.
My question: can I just ignore this trust and give the child of my sibling their share of the money now? This won't be a life-changing amount for them, but it will help them move towards being independent, buying a car, paying for school, etc. I feel that by the time they turn 30, 10 years from now, they could have already put this money to better use instead of letting it sit there.
However, I don't want to do this if there will be some kind of penalty if someone finds out. I'm sure my sibling and their child would keep quiet, but they live in the same town where a lot of my parent's extended family resides and people like to be nosy and gossip.
Other details: the will is filed in the US state of Georgia, and is currently under solemn probate while the assets are sold off. I have an attorney handling probate, but I don't want to involve them in this unless I need to.
(This is definitely talk to an estate lawyer in your state, for the record). If you are in charge of setting up the trust, could you set up the type where the recipient could access funds if the trustee approves? And set yourself up as the trustee, and just…. Approve any request?
I think it would be a kindness to help a 20 year old avoid student loans.
posted by Valancy Rachel at 10:32 AM on July 10, 2022 [5 favorites]
I think it would be a kindness to help a 20 year old avoid student loans.
posted by Valancy Rachel at 10:32 AM on July 10, 2022 [5 favorites]
There may be ways for you (as the executor) to avoid creating the trust or for the trustee of the trust to get around the age provision but you should not do this without the advice of an attorney familiar with the Georgia probate and trust laws. I believe when the will goes through probate there would be a public/court record of everything in the will including the provision about the testamentary trust. Just talk to your attorney about your options and what the restrictions on the trust would actually be - often there are exceptions or the trustee may have broad discretionary powers.
posted by ohneat at 10:32 AM on July 10, 2022 [5 favorites]
posted by ohneat at 10:32 AM on July 10, 2022 [5 favorites]
The trustee of the trust could, generally speaking, make this determination. Obviously, yes, you really need a lawyer to look at the language of the trust documents because no this is not a thing that can otherwise be determined.
I was in a similar situation with a trust that was set up for my foster brother. My sister and I were executors of the will. Part of the will's documents was the funding of the trust that had already been set up (a trust needs to both be set up and then also funded so it's worth understanding how this works in your specific case) and that trust had stipulations about how my foster brother could receive his money. However, my sister as the trustee, was able to make changes to that in the environment where we were which was that there weren't going to be people who objected. Because, technically, the trustee is holding the money for the other person and they have a fiduciary responsibility to the trust (not the person) up uphold the rules.
Since you have an attorney handling probate, I believe the answer to "will anyone care" might possibly be them presuming there is language about the trust in the will. They also may be able to help you work this out in a way that everyone is okay with, presuming you and your sibling are on the same page about this.
posted by jessamyn at 11:48 AM on July 10, 2022 [1 favorite]
I was in a similar situation with a trust that was set up for my foster brother. My sister and I were executors of the will. Part of the will's documents was the funding of the trust that had already been set up (a trust needs to both be set up and then also funded so it's worth understanding how this works in your specific case) and that trust had stipulations about how my foster brother could receive his money. However, my sister as the trustee, was able to make changes to that in the environment where we were which was that there weren't going to be people who objected. Because, technically, the trustee is holding the money for the other person and they have a fiduciary responsibility to the trust (not the person) up uphold the rules.
Since you have an attorney handling probate, I believe the answer to "will anyone care" might possibly be them presuming there is language about the trust in the will. They also may be able to help you work this out in a way that everyone is okay with, presuming you and your sibling are on the same page about this.
posted by jessamyn at 11:48 AM on July 10, 2022 [1 favorite]
It highly depends on your state law and local probate procedure, and you should get the advice of counsel.
In a similar situation, my sister and I, as co-trustees of a Florida testamentary trust, saw no reason to follow the exact terms of our mother's overly-complicated will, which would have required us to administer a large network of trust accounts for years and years to hold a very small amount of money for grandchildren and great-grandchildren.
So we had all of the grandchildren sign a very simple agreement, to allow the trust to distribute all of the money now, either directly to the grandchildren, or to the grandchildren in trust for their children. The key was for all the beneficiaries to agree on what would be done.
Bottom line, what you want to do can probably be handled simply, but you definitely need advice from your local probate counsel.
posted by JimN2TAW at 1:57 PM on July 10, 2022 [3 favorites]
In a similar situation, my sister and I, as co-trustees of a Florida testamentary trust, saw no reason to follow the exact terms of our mother's overly-complicated will, which would have required us to administer a large network of trust accounts for years and years to hold a very small amount of money for grandchildren and great-grandchildren.
So we had all of the grandchildren sign a very simple agreement, to allow the trust to distribute all of the money now, either directly to the grandchildren, or to the grandchildren in trust for their children. The key was for all the beneficiaries to agree on what would be done.
Bottom line, what you want to do can probably be handled simply, but you definitely need advice from your local probate counsel.
posted by JimN2TAW at 1:57 PM on July 10, 2022 [3 favorites]
When my grandmother died there was a provision in her will to withhold money from one family member until they did a certain thing. The executor and all concerned parties agreed to ignore the provision and the person received the money before doing that thing. I'm sure lawyers were involved and I'm sure state law was consulted.
posted by Winnie the Proust at 8:11 PM on July 10, 2022 [1 favorite]
posted by Winnie the Proust at 8:11 PM on July 10, 2022 [1 favorite]
These kinds of restrictions are not always enforceable, but you won't know without asking the lawyer. You may also be able to make agreements to get around it. It's all very complicated and jurisdiction-specific.
Just ask the lawyer. Your conversations with them are privileged. At the least, you should know what your obligations are so you do not engage in a breach of trust. I am not your lawyer, this is not legal advice.
posted by lookoutbelow at 12:22 AM on July 11, 2022
Just ask the lawyer. Your conversations with them are privileged. At the least, you should know what your obligations are so you do not engage in a breach of trust. I am not your lawyer, this is not legal advice.
posted by lookoutbelow at 12:22 AM on July 11, 2022
I was faced with a similar situation. Assets from my sister's estate are to be held in trust until each of my nephews turn 30. This was solely because my older nephew is terrible with money. The younger is quite good with money. I was also holding my younger nephew's real property (he inherited the homestead) in trust. The estate lawyer (in Florida) told me I could turn over the property earlier in my discretion. My younger nephew now owns the property himself. If the original reason for the trust is now resolved, I think in your discretion as trustee, you can distribute the assets earlier. I would agree that you should discuss the situation with a lawyer in case there are state-specific reasons that you can't. But generally, these types of decisions are in the trustee's discretion.
posted by ceejaytee at 7:16 AM on July 11, 2022 [1 favorite]
posted by ceejaytee at 7:16 AM on July 11, 2022 [1 favorite]
A friend of mine in another state had a parent die with a similar trust for one of the three siblings, to be administered by the oldest sibling. None of them liked this at all. They were able to consult with a lawyer and find out the path forward to not have the trust in place. So, yeah, talk to a lawyer.
posted by bluedaisy at 12:08 PM on July 11, 2022
posted by bluedaisy at 12:08 PM on July 11, 2022
In general, the settlor of a trust adds a minimum age requirement in order to make it more likely that the recipient will be mature and better able to handle the money. You seem to think of this as some kind of punishment for "circumstances," but it is a very common provision.
The executor of an estate generally has the obligation to follow the will. The trustee generally has an obligation to carry out the directives of a trust. You would need affirmative court authorization in most states, if not all, to vary from this. It's not something you just decide to do.
posted by yclipse at 5:26 PM on July 11, 2022
The executor of an estate generally has the obligation to follow the will. The trustee generally has an obligation to carry out the directives of a trust. You would need affirmative court authorization in most states, if not all, to vary from this. It's not something you just decide to do.
posted by yclipse at 5:26 PM on July 11, 2022
My paternal grandparents did this for me and my brother: the assets were portioned out in 5 year increments beginning when we were 25/28. Iirc we were able to access the interest.
They were in CA
posted by brujita at 2:58 AM on July 12, 2022
They were in CA
posted by brujita at 2:58 AM on July 12, 2022
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posted by Blue Jello Elf at 9:57 AM on July 10, 2022