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Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len and Rosie,

I have a sister who is a drug addict and is usually out of contact with us.

My other sister and my stepbrother and I are the beneficiaries of my stepfather’s living trust.

Is there anything I can do ahead of time to ensure that we don’t have to find her when my stepfather dies?

David

Dear David,

When an ordinary revocable trust becomes irrevocable upon the deaths of the settlors (the persons creating the trust), then the trustee is required to provide notice of the existence of the trust to certain persons, including all of the beneficiaries, other trustees and the people who would inherit from the trust settlors had they died with no estate plan at all.

If your stepfather created the trust on his own, presumably after your mother’s death, then you have nothing to worry about.

Your sister, his stepdaughter, isn’t entitled to any notice regarding the existence of the trust unless she’s named as a beneficiary.

If your stepfather’s trust was created by him and your mother, then your drug addicted sister is entitled to notice of the trust under California Probate Code section 16061.7.

If you know where she resides, then the trustee’s attorney can mail the notice to her after it is signed by the trustee, with a cover letter explaining that she’s not entitled to anything. If she cannot be located after a diligent search, then that’s OK too. The trustee does not have to send the notice if your sister cannot be located.

Alternatively, it may be possible for your stepfather to revoke the trust he created with your mother, and transfer everything to a trust he creates for which your sister will not be entitled to notice.

It’s difficult to deal with a drug addicted loved one in an estate plan.

Frequently, it does more harm than good to leave a substantial sum of money to someone suffering from an addiction. There are generally two ways of dealing with this challenge. The easiest way is to disinherit the drug addicted child, but that can be harsh.

An alternative would be to leave an inheritance to the drug addicted beneficiary within a discretionary trust in which the trustee has the absolute right to withhold most distributions unless the beneficiary passes a drug screening test.

The trust would be there to pay for drug rehabilitation, but not the drugs themselves. The problem with this alternative is that the person serving as trustee becomes his brother or sister’s keeper. The trustee is the person who has to say ‘no’ to the drug-addled demands of a suffering beneficiary.

That’s why many families take the easy way out by disinheriting the drug addicted child, leaving everything to the other children and rely on a legally unenforceable handshake promise from the family to help out the drug addicted child when it’s appropriate.

Len and Rosie

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Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505.

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