[WSBAPT] Can TEDRA Modify Will Provisions

[Paul Neumiller]

Doug, did you get any responses off-list to your post?  I haven't seen any
answers posted to the list.  

 

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Douglas Bratt
Sent: Thursday, May 28, 2015 5:23 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Can TEDRA Modify Will Provisions

 

Hello Listmates:

 

Husband and Wife have three sons, all over the age of majority.

 

Husband (considerably older) and Wife signed wills, both with testamentary
provisions putting their respective interests in the family home into an
irrevocable Trust, for the benefit of the survivor, with their oldest son
named as Trustee.  Unfortunately, no Community Property Agreement was
entered into.

 

Husband died.  Probate not yet filed.  Currently, Wife owns half of house,
outright, and the other half, if the will is followed, will be in Trust for
benefit of Wife.  

 

Language appears to be as would be used in a Special Needs Trust, indicating
that Trustee can pay Wife's expenses, "but only such expenses over and above
the ones which would be paid by any local, state, or federal government or
from any private or public profit or non-profit organization if the trust
and its assets were not in existence."

 

A further provision states that if the beneficiary is not receiving gov't
benefits, based upon need or disability, "the trustee shall have the
absolute and sole discretion to determine what disbursements shall be made
from the trust estate for the beneficiary's benefit."

 

Wife has no medical issues and is unlikely to have any such issues for quite
some time, based upon her present age.  

 

Question is whether or not the Wife, and her three sons (the ultimate
beneficiaries) can enter into a TEDRA Agreement, right at start of probate,
to allow for wife to directly receive the husband's half of the house
instead of having to set up the trust and then having the Trustee decide
that a full disbursement from the Trust shall be made for beneficiary's
benefit, since she is not receiving gov't benefits based upon need or
disability when that transfer takes place.  Seems like too many
complications involved with getting to the goal (of full ownership by Wife)
if the Trust has to be established per the Will.

 

Wife and all three sons are in full agreement that she should have full
ownership of house.

 

What say ye, old (and young, and in-between) wise ones?

 

Regards,

 

Doug Bratt

 

Douglas J. Bratt

Lawyer

 



 

Office: (360) 213-2040 

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