Help!

[brendamc67]

My mom is 77. She had listed myself (I have four other siblings) as the beneficiary in her will to inherit her property. Myself and all my siblings live on the property at this time. In order to protect the property after my husband and I file for BK, I am asking mom to change her will. After the 180-day time period is up, I have created a trust document to use instead of the will (using the Family Will Maker software). I am hoping to find an addition to their basic trust in the form of a "spendthrift" paragraph, so that my siblings will feel comfortable with the setup.

At the root of my question is this: The sister who will inherit the property during the waiting period is sort of separted from her husband. He is in alcoholic who has a tendency to drink and drive. Would she have to file legal separation papers from her husband in order to protect herself and (potentially) the inherited property? Or is there another document she can file to accomplish that? She does not want to divorce him.

If there were any of the other siblings mom could leave the property to, then this wouldn't be an issue. The rest do not get along, though, and even dividing the property evenly amongst us wouldn't work because of the infighting.


I in no way wish my mother into the grave. As far as I am concerned, she could live to be 100, and I would be happy (we have a great friendship, and I am loathe to lose that). On the other hand, at 77, it's hard to know what might happen.



Ridiculous, isn't it? Anyway .... my question is about my sister's options as far as protecting her (possible) assets. Any help would be greatly appreciated.

[LadyInTheRed]

Your mother should see an estate planning attorney, especially since there is infighting in the family. No matter how honorable your intentions are, if you draft a trust for her, somebody may petition a court to have it invalidated because of undue influence. If she is changing her estate plan at your request, she needs to get her own independent advice. An attorney can also best advise her on how to pass her assets to her chosen beneficiaries while keeping them out of the hands of creditors. Do-it-yourself trusts are good for people who want a trust to avoid probate. When the purpose of the trust goes beyond that, it is too easy to make a mistake. The reason Will Maker does not have a spendthrift clause is probably that state laws on their enforceability vary.

Your sister should see a family law attorney. If she is in a community property state, the inheritance would be separate property, but she needs to make sure she doesn't do anything to convert it it into community property. She also needs to have a will or trust to make sure the property goes to where she wants it to.

[brendamc67]

Thanks!

You're right. The sad thing is that mom doesn't have the money to go see an attorney (she is real estate rich, but money poor). So ... I might have to just take the chance in the short run (a couple of months after we file). We could borrow against our 401k to pay for it, but i'm afraid the trustee might find that ... funny. I could save for a couple of months and then pay for it, though. I've felt really uncomfortable with this whole thing since the beginning because I am the one who drafted the will. Not the best of circumstances overall.....

Perhaps I am just being way too paranoid over things. I just want to make sure that everyone's interests are secured.