My mother died almost 4 years ago, 8 months prior to my step father. They had a family trust set up spliting everything 3 ways amongst myself, my sister and our step brother. Both also had pour over Wills giving everything not specifically in the Trust to the Trust as beneficiary. Just before our step father's death, (20days) our step father changed his Will and gave the entire estate to our step brother. Our step brother is the Trustee of their Trust and the Executor of both Wills. Our step brother has had complete control over all assets and personal property of our mother and step father. He has failed to provide us an inventory and accounting and has freely been spending all monies. While he said that he was going to file for probate of the estate, he has only filed a Petition asking the Court to determine whether he and his wife were entitled to the money in one bank account that he and his wife opened in their own names and put the money from a sale of one of our mother and step father's houses that was owned by the Trust. There are 2 other pieces of real estate, at least $500K in investments and numerous items of personal property, as well as, we were told by our mother, life insurance proceeds, CD accounts, etc. My sister and I were wondering whether we should file for Probate of our mother's estate or are we precluded from doing so because she preceased our step father? Note: We have filed our objection to our step brother's Petition based upon undue influence and fraud.
2 Answers from Attorneys
You need to take all documentation - trust, both Wills, and your step-brother's probate filings - to a probate litigation attorney. Without seeing the actual terms of the trust, it is difficult to give you advice about your options.
I am sorry for your losses. Your objection is a step in the right direction, but you and your sister may need to file your own action against your step-brother. Since your parents had a trust, a Probate is ordinarily only necessary where there is property that has not been properly titled into the name of the trust. Your step-brother may be alleging that the bank account in question is the only property that requires Probagt. As Ms. Rouse has said, you need to consult a trust/Probate litigation attorney. That attorney would need to review all trust and Probate documents. His/ her review should also determine the nature of any Probate Petitions filed by your step-brother as they relate to your parents' trust.
The best course of action may depend not only on the terms of the trust and the will of both your mother and your step-father but on the factual basis for your objection based on undue influence or fraud. Was your step-father older than 65 years of age at his death? If so, an action against your step-brother may also need to include allegations of financial elder abuse.
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