What Kind of Family Trust Should We Make for Our Children

Question: My husband and I are planning to create a family trust. This is our first marriage.
Is it better to create a survivor trust and a bypass trust or just a survivor trust so that when one of us die, all the assets will go to the survivor? I understand if you have a bypass trust, then the survivor is only allowed to have the income from the bypass trust and won’t be able to touch the principal. If everything goes into the survivor trust, does the survivor has to pay taxes? Does the children have to pay taxes on the inheritance who inherits after the survivor’s death?

Answer: The decision as to what type of trust to create should be made after consulting qualified counsel.  While a bypass trust does limit itself to income for the survivor there is usually a provision that allows the bypass trust principal to be invaded if the assets of the survivor’s trust have been exhausted.

 

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Undue Influence, Conservatorship, Estate Planning Attorney Helps with Probate Issues

un·due in·flu·ence
noun
Law
noun: undue influence

influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences.

Undue Influence

A judicially created defense to transactions that have been imposed upon weak and vulnerable persons that allows the transactions to be set aside.

Virtually any act of persuasion that over-comes the free will and judgment of another, including exhortations, importunings, insinuations, flattery, trickery, and deception, may amount to undue influence. Undue influence differs from duress, which consists of the intentional use of force, or threat of force, to coerce another into a grossly unfair transaction. Blackmail, Extortion, bad faith threats of criminal prosecution, and oppressive Abuse of Process are classic examples of duress.

Four elements must be shown to establish undue influence.

1. It must be demonstrated that the victim was susceptible to overreaching. Such conditions as mental, psychological, or physical disability or dependency may be used to show susceptibility.
2. There must be an opportunity for exercising undue influence. Typically, this opportunity arises through a confidential relationship. Courts have found opportunity for undue influence in confidential relationships between husband and wife, parent and child, trustee and beneficiary, administrator and legatee, guardian and ward, attorney and client, doctor and patient, and pastor and parishioner.
3. There must be evidence that the defendant was inclined to exercise undue influence over the victim. Defendants who aggressively initiate a transaction, insulate a relationship from outside supervision, or discourage a weaker party from seeking independent advice may be attempting to exercise undue influence.
4. The record must reveal an unnatural or suspicious transaction. Courts are wary of testators who make abrupt changes in their last will and testament after being diagnosed with a terminal illness or being declared incompetent, especially if the changes are made at the behest of a beneficiary who stands to benefit from the new or revised testamentary disposition.

Undue Influence in California Will and Trust Contests

 

Undue Influence in California Will and Trust Contests

California defines undue influence in the Civil Code. Specifically, Civil Code Section 1575 states:

“Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

2. In taking an unfair advantage of another’s weakness of mind; or,

3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress. [Enacted 1872]”

Undue influence will be presumed, in California, in many cases where a family member initiates estate planning for an elderly relative; this is even more the case if the if the new plan is unfair to the elderly relative or benefits the one family member exercising undue influence to the detriment of other family members who would otherwise be expected to share in the elderly relative’s estate.

Proof of undue influence is made by the introduction, at trial, of circumstantial evidence; the trier of fact must decide based on the inferences shown by the evidence. This is because it is a rare case to have direct testimony of the undue influence.

An inference of undue influence may exist if it is proven that the dispositions of the elderly relative in the will are at odds with the elderly relative’s stated intentions. It can also be inferred if there is a close relationship between the bad actor and the elderly relative, and it can be shown that the bad actor took an active role in obtaining the will or trust that is being contested.

In one case the California Supreme Court decided to deny probate to a will where it was shown that the deceased elder had a weakened mental and physical state when the contested will was signed, the bad actor had opportunity and actively procured the contested will and made misrepresentations to the deceased elder concerning other relatives (the bad actor’s siblings). Estate of Garibaldi (1961) 57 C2d 108

Posted by Theodore M. Hankin

Elderly Abused at 1 in 3 Nursing Homes

Stop Elder Abuse NJ

http://abcnews.go.com/US/story?id=92689

“Reports of serious, physical, sexual and verbal abuse are “numerous” among the nation’s nursing homes, according to a congressional report released today”.

“To enforce the standards, the U.S. Department of Health and Human Services contracts with the states to conduct annual inspections of nursing homes. The states also are required to investigate individual abuse complaints. The report’s statistics were derived from these state inspections”.

Is once a year adequate? Are these inspections actually thorough? More needs to be done to stop this terrible tragedy.

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