Siblings question father’s last-minute change to trust
Question: My father recently passed away, and his only property was his home, which he owned free and clear. My sister and I are his only children, and our Mom passed away three years ago. We found his will, and it says the only beneficiary is a family trust. We found the trust, and it originally said that my sister and I would inherit everything. However, there was an amendment to the trust made the day before he died that he may have signed in the hospital. It changed the beneficiary from my sister and I to a guy named “Scooter Brown.” We don’t know much about him, but he was coming around the house for a few months prior to dad’s passing, and he said he was a handyman. We thought that houses automatically pass to the children. What should we do?
Answer: Although your question is more about trust administration or probate, these issues are often intertwined with real estate matters. First, I am sorry about your loss. I know that loss can be even harder to handle when estate planning issues arise like this.
Generally, homeowners can decide to give their home to anyone they wish upon death. The exceptions to this are when the homeowner is survived by a spouse or minor children. I am assuming neither of these are present in this case. Therefore, property does not automatically descend to the children. Your parents likely created a family trust to make things easier upon their death, namely by attempting to avoid probate. Without the amendment to the trust, the conveyance of the house to the two of you would have been likely a smooth transaction. The trust essentially acts as a person’s will, in that testamentary provisions are contained in the trust, rather than the Last Will and Testament (which gave everything to the trust, to be distributed to the beneficiaries).
The main question here is whether your father had the capacity to make trust amendments the day before his death. Issues to consider would include whether he had any type of dementia or mental illness, was under the influence of any medication that would cause him to not understand his actions or whether there was undue influence by Scooter. Based on the above, you should seek legal counsel to assist you in challenging the validity of the trust amendment. If it is determined that the amendment was void, then you and your sister should have the ability to obtain legal title to the property.
-Eric P. Feichthaler has lived in Cape Coral for 27 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 13 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.
his article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.