Dear Counselor: Taking on the stepmother

Question: My mother passed away several years ago and left everything to my father. After my mother’s death, my father remarried a woman about his same age. My father recently passed away. I know that he made some estate plans with my stepmother, but he assured my brother and me that we would still be beneficiaries in his estate plan.

I assumed that meant the house that we all grew up in would go to the two of us. When we saw our stepmother at the memorial, she told us that she was going to get everything straightened out. It has now been about three months, and we still haven’t heard anything. What am I entitled to know about his estate plan? Will I receive some type of information about that?

Answer: If there is one thing that we learn from fairy tales, it is to beware of the stepmother. Whether your stepmother has been good or evil may depend on a number of factors but for you and your brother, it will likely depend on what is in the terms of the trust.

The law says that if a trust, or any part of it, becomes irrevocable, the trustee must notify any heirs or beneficiaries not later than 60 days after the decedent’s passing. Once some part of the trust is irrevocable, it cannot be altered without court involvement. An heir is someone who would take property from the probate estate if the decedent had no will. Both you and your brother would qualify as heirs to your father’s estate. In addition, it sounds like from what your father told you, you and your brother are likely beneficiaries.

The question here, however, is whether the trust between your father and stepmother became irrevocable upon his death. Assuming that it did, the trustee will either provide you a copy of the terms of the trust or will tell you that you have the right to obtain a copy of the terms of the trust. So you can and will want to make that request.

It is possible that your father left everything to your stepmother in which case you may have some questions about whether your father really understood the legal consequences of his new estate plan, particularly in light of his comments to you and your brother. But you will need to see a copy of the document before you make any judgments.

Perhaps the best place to start with your stepmother is a simple inquiry about whether you might be able to help her with her efforts to “straighten” things out. You may want to mention that your father made a comment about you and your brother being in the trust and that it might be helpful to see it.

Once you receive the document, you will need to review the terms of the trust carefully to see where you and your brother stand. Sometimes a trust may require the creation of an irrevocable subtrust at the death of the first spouse. In other cases, a person, like your father, who owns a house prior to marriage, may give his surviving spouse a right to occupy the house that ends once the surviving spouse moves or dies. So it may be that your stepmother has the right to reside in the property but that the ownership of the property after her death will pass to you and your brother.

Of course, you will not know exactly where you stand until you get the trust documents. Note that there may be some additional twists and turns, and you should probably seek the assistance of an attorney to explore all of your options.

For the moment, approach your stepmother with some caution and respect. She may have more power than you think. Trying to push her around or make legal demands may lead her to develop an adversarial approach. That may do more harm than good.


Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.

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By |2018-08-03T16:18:01+00:00July 7th, 2018|Dear Counselor|Comments Off on Dear Counselor: Taking on the stepmother