Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len & Rosie,

My parents have a trust that leaves everything to my brother and I. They want to disinherit my brother.

Recently, he has behaved outrageously towards them, and has substance abuse problems. My parents are very upset with him. All he does is call, yell, and ask for money.

Should my parents dissolve their trust and add me to their home and other accounts as a joint owner?

My brother also named on their powers of attorney which need to be withdrawn.

Jeffrey

Dear Jeffrey,

It’s important to know that everyone is entitled to a day in court. Your brother, if he is so inclined, could sue you after your parents’ deaths for what he perceives as his fair share.

This isn’t to say your parents shouldn’t change their estate plan. They have the right to leave their assets to anyone.

Our point is that your parents need to make it as difficult as possible for your brother to win a case against you.

We prefer that they amend the trust instead of putting you on the deed.

If you are added to the home’s title, then your parents won’t be in total control of the property any longer, and they can’t get your name off the deed unless you sign it back over to them.

It’s best for your parents to leave the home to you in their trust. This also benefits you. If you inherit your parents’ home, you’ll have a higher cost basis, which means less tax for you to pay if you ever sell the property.

Your parents should visit their attorney to review and amend their trust. You shouldn’t be there, not even in the parking lot waiting in the car.

Any estate plan, even a deed, can be overturned on the basis of undue influence, for which there are three elements. The first is a “confidential relationship” in which your parents trust and confide in you.

The second is “active procurement,” which happens if you procure the changes to the estate plan by picking the lawyer, scheduling the appointment, etc.

The final element is “unjust enrichment”, which happens when you get more than your nominal one-half share.

When all three conditions are met, the changes are presumed to be invalid and the burden of proof will be on you to show that this is what your parents really wanted. Your brother may also portray it as financial elder abuse.

Your parents’ attorney and his or her staff will be disinterested witnesses as to their mental capacity and their intent to favor you over your brother. While you could certainly testify as why your parents left it all to you, your testimony could be discounted because it’s self-interested.

Your parents’ lawyer will also prepare new powers of attorney that revoke the old ones naming your brother as an agent.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505, or at LenTillem.com. Len has a new video channel on YouTube.

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