Legal Question in Wills and Trusts in California
Incapacitated mother (Alzheimer's). Her Trust has co-beni's/trustees (son/daughter), 50/50 split, trust reads survivor would get deceased's share rather than go to deceased's children. Son/daughter agree and would prefer their share go to their children rather than survivor. Both also have shared POA for mom. If trust cannot be changed can we sign agreement between us? And in what form?
2 Answers from Attorneys
Beneficiaries of a trust can make any agreement they deem appropriate for themselves, concerning their respective shares of a trust to be received by each of them. However, it would be prudent the two of you have respective lawyers to represent each of you in the preparation of the agreement, or sign a consent and waiver to have one lawyer prepare the agreement you both will be signing, and possibly notarized, if recording is required, that may affect any title interests, or bank requirement.
You certainly are not in a position to amend your mothers trust if she is not able to do so. The first issue is the degree of her incapcacity. If she can understand the nature of her property and the objects of her bounty ( ie children and grandchildren) she may be able to amend the trust. If not, no changes can be made to the instrument.
The two beneficiaries can reach any agreement you desire. It would be advisable to have counsel to prepare an agreement of the type you are describing. This is not a modification of her trust, but is an agreement between you two, assigning an expectancy of each.
To make this work effectively you really need counsel.
Of course you can also just plan for both of you to survive her, in which case each of you takes 50%. Timing is everything in such a plan.
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