The plaintiffs in the recently decided case were the children of a woman who died while living at a home in 2012. The home was owned by the woman’s brother, who is the defendant in the case. According to the facts discussed in the appellate opinion, the plaintiffs were under the impression that their mother owned 50% of the property at the time of her death, and argued that although her ownership was not recorded in an official capacity, that the defendant had acknowledged and promised to her that her children would receive half of the value of the property upon her death.

When the plaintiffs made a claim to their mother’s estate for their presumed share of the property, the defendant responded by stating that he owned the entire property, as it was conveyed to him by his and the decedent’s mother before her death. Reviewing the public records, the probate court determined that the property was solely owned by the defendant, and that the plaintiffs had no claim to the home. The plaintiffs then sued the defendant in the Providence County Superior Court, alleging that the defendant had made an enforceable promise to their mother to hold the property in trust for their benefit, that they were entitled to one half of the value of the property, and requested that the court order the sale of the property and award them what was due.

The Superior Court addressed each of the plaintiff’s three separate claims in turn, and found that there was no enforceable agreement that gave the plaintiffs any right to the property. Although there were ambiguous statements and promises between the decedent and the plaintiff’s mother, nothing existed that gave the plaintiffs a legal right to claim any ownership of the property. The plaintiffs appealed the ruling to the Rhode Island Supreme Court, which found no error by the Superior Court, and ultimately denied the plaintiff any avenue of relief for their claim.

A Qualified Trust and Estate Attorney is Essential to Clarify and Protect Rights to an Estate

If a family member or loved one has made a promise to give their property or assets to you upon their death, the promise alone may not be enough to secure the will of your loved one. The advice and counsel of a qualified Rhode Island trust and estate attorney can ensure that your loved one’s final wishes are fulfilled, and that events or feuds after their death do not distort the division of their property as they desired. Although claims can successfully be made to obtain an interest in property after one’s death, the best time to clarify the intent of a property owner is while they are still alive. If you or a family member are interested in preparing a Rhode Island estate plan that is unambiguous and enforceable, the skilled trust and estate lawyers with Bilodeau Capalbo can help with will preparation and trust creation, and all other estate planning preparations. Contact us by calling our offices at 401-300-4055 today to schedule a no-obligation consultation and discuss your situation.

In the recently decided case, the appellants consist of the heirs of a Massachusetts woman who died in 2011. Before her death, the woman’s husband created a qualified terminable interest trust in New York to support his wife after his death. The trust was created to guarantee the wife income from the husband’s assets while reducing the tax burden to the parties’ heirs when the husband and wife eventually passed away. After the husband died in 1993, his estate was not taxed for the value of the trust assets, and the assets remained in trust to benefit the wife until her passing. The wife later moved to Massachusetts, where she lived until she died in 2011. The wife’s estate filed both federal and state estate tax returns after her death, noting the trust assets on the federal documents, but omitting them from the state return, and paying no state estate taxes on the trust assets.

The Massachusetts Commissioner of Revenue selected the estate tax return for an audit, and determined that the value of the trust assets should be assessed for Massachusetts estate tax. As a result of the audit, the estate was required to pay over $1.8 million in taxes and interest. The estate disputed the decision, and the Massachusetts Supreme Court took up the resulting appeal. The high court agreed with the tax commission that the transfer of the assets from the wife to her heirs occurred in Massachusetts and was not eligible for and protection by their inclusion in a qualified interest terminable trust. This was because Massachusetts law only protected such assets if the trust created in Massachusetts, and this property was placed in trust in New York. Because of the high court’s decision, the estate will be required to pay the full amount of Massachusetts estate tax on the trust assets.

Although the wife’s estate was under the impression that taxes would not be levied on the estate, this recent decision suggests they were mistaken. Effective estate planning must allow heirs and beneficiaries to an estate to know their potential tax burdens early, and not only after an audit occurs. Furthermore, there are multiple ways for families to prevent their assets from being taxed. A knowledgeable estate preparation attorney can help ensure that beneficiaries will pay as little as possible in federal and state estate taxes.

Retain a Qualified New England Estate Planning Attorney

If you or a loved one is preparing an estate plan to protect your family’s assets in the event of a death, hiring a qualified Rhode Island trusts and estates attorney may be the most important decision you make in your estate planning process. The knowledgeable estate planning lawyers with Bilodeau Capalbo can assist you with will preparation, trust creation, and other estate planning issues. Our skilled attorneys have knowledge of the state and federal laws that must be followed to best protect your assets. Our attorneys practice in Rhode Island, Connecticut, and Massachusetts, and can be of service for all of your estate planning needs. Call our offices at 401-300-4055 to schedule a consultation.

The primary issue in the recently decided case surrounds joint bank accounts that a woman opened with two of her daughters shortly before her death. The woman’s two other daughters, who are the plaintiffs in the action, challenged the probate court’s division of these accounts, which were each awarded to the joint account holder and not divided by the surviving children as remaining property in the decedent’s will.

According to the appellate ruling, the decedent went to the bank with one of her daughters with the intention of opening two accounts that would pass on to each of the joint account holder daughters upon the woman’s death. Under Rhode Island law, these accounts would need to be designated as joint accounts with a right of survivorship in order to pass to the joint account holder and not to other heirs through probate. For an unknown reason, the bank agent failed to designate these accounts as such.

After the woman died, her other children attempted to get the proceeds from the two bank accounts included in her probate case to be divided equally amongst her heirs. The woman had prepared a will that specifically awarded joint accounts with a right of survivorship to the joint account holder, however, the two recently opened accounts were not specifically designated with a right of survivorship. The superior court ruled that the accounts were intended to have a right of survivorship, and treated them as such, awarding them to the joint account holders, and the other children appealed.

On appeal, the Rhode Island Supreme Court rejected the other children’s arguments, noting the testimony from the bank representative that all of the joint accounts opened at that bank are supposed to have a right of survivorship, whether it is specifically designated or not. Additionally, the court looked to testimony from the attorney who assisted the decedent with preparing her will, and determined that it was her intention to keep the proceeds in the two accounts apart from her probate case. As a result of these findings, the appeals court affirmed the superior court decision.

Do You Have Questions or Issues About a Will or Estate Issue?

If you are looking to prepare a will, or have questions about possible assistance in a probate matter or other Rhode Island estate planning issue, using a skilled attorney from the start can save time and money in the long run. A qualified trust and estates attorney from Bilodeau Capalbo, LLC can help protect your interests. At Bilodeau Capalbo, we represent clients with many trusts and estates issues, including will preparation. Our experienced attorneys can help, regardless of the issues you are dealing with. To discuss your situation with no obligation, call 401-300-4055 to schedule your free consultation today.

According to the court’s opinion, the mother created a trust agreement to distribute her assets upon her death, and also established a family limited partnership. The mother retained the general interest of the partnership, and two of her children retained an interest for the benefit of their children. She later gifted additional interests in the partnership to her children and grandchildren. Before the challenged amendments, the mother retained a 44.1 percent interest, the defendant daughter held 31.06 percent for herself and her children, and the plaintiff daughter had 24.84 percent for herself and her child. The mother eventually needed additional care and ended up moving to an assisted living facility.

Soon after, the mother tried to commit suicide in part because she said it was “the easiest way to give [her] house to [her children].” She was diagnosed as having bipolar disorder, depression, and mild dementia. In the following months, she transferred her remaining interest in the partnership to the defendant. She also appointed the defendant as trustee and made the other daughters’ interest in the trust conditional on the transfer of interest in the partnership to defendant. The trust was then amended to give two daughters and a granddaughter $2,000, and the rest to the defendant. The defendant also deposited additional money her mother received into her children’s accounts.

After the mother’s death, the plaintiff filed the lawsuit, seeking to void the amendments and alleging that the defendant had breached her fiduciary duty as trustee. The case went to trial and the jury found that the mother lacked testamentary capacity to amend her trust. It also found that her daughter had unduly influenced her mother, causing her mother to execute the amendments and gifts. The jury further decided that the daughter breached her fiduciary duty as trustee. The jury awarded damages in the amount of $441,290. The defendant daughter requested a new trial. On appeal, the court considered in part whether there was support for the jury’s finding that the defendant unduly influenced her mother.

Under Rhode Island law, undue influence is when a dominant party’s will is substituted for the “free will and choice of the subservient party.” A fact finder generally considers the totality of the circumstances, including the subservient party’s physical and mental condition, the relationship between the parties, and the dominant party’s acts and declarations. The court found that the record supported the jury’s finding that the defendant unduly influenced her mother. It noted evidence including testimony that the mother was not able to understand the implications of her actions, the mother’s dependence on her daughter, the daughter having her mother’s financial power of attorney, and the daughter’s facilitation of all of the amendments. The mother also consistently expressed her intent to divide her estate evenly among her daughters. Accordingly, the Rhode Island Supreme Court held the jury’s verdict was supported by the evidence and that a new trial was unnecessary.

Contact a Rhode Island Estate Planning Attorney

Estate administration can be complicated and fraught with disputes among family members. If you need representation in a property dispute or transaction or in estate planning, consult a skilled estate attorney about your case. The Rhode Island estate planning attorneys at Bilodeau Capalbo, LLC, represent clients in Rhode Island, Massachusetts, and Connecticut. Our firm can help clients resolve estate administration disputes, draft wills and trusts, and more. We maintain close and trusting relationships with our clients. Call us at 401-300-4055 or fill out our online form to arrange a consultation.

The court named the plaintiff as administratrix of the estate and imposed a corporate surety bond as a condition of the plaintiff becoming administratrix of the estate. The plaintiff also filed for sanctions against opposing counsel. The probate court denied the plaintiff’s motion for sanctions against opposing counsel and her motion to waive the surety bond. In 2012, the plaintiff requested the superior court to authorize another family member to “stand as surety for [the plaintiff’s] conduct as administratrix” and to eliminate the requirement of the surety bond. She also appealed the probate court’s refusal to sanction opposing counsel for “bringing a frivolous guardianship proceeding” before her aunt passed away. The court declined to sanction opposing counsel and also held that the corporate surety was “absolutely necessary” in this case.

A surety bond in a probate case is a means of ensuring that the executor will not commit any wrongdoing. The insurer agrees to compensate the beneficiaries for any money lost if the executor makes a mistake (intentionally or unintentionally) in settling the estate. Section 33-17-1.2 of Rhode Island General Laws provides the circumstances under which a surety bond can and should be imposed. Section 33-17-1.2 allows the probate court to use its discretion in determining whether a corporate surety is required, and it provides numerous factors to consider. Under the current version of the statute, a court can consider facts such as the total number of heirs, the relationship between the heirs, the extent of conflicts between the heirs and over the estate, and the total size and monetary value of the estate. In this case, the court decided that the plaintiff failed to show that her surety or that of her family member was sufficient.

The plaintiff appealed several decisions related to the administration of the estate, and the Rhode Island Supreme Court upheld the decisions of the lower courts. It noted the extensive nature of the litigation involved in the administration of the estate and pointed out that the court has limited resources to adjudicate “relentless, frivolous filings,” and that the plaintiff failed to provide the information required for the appeal. The court reduced the amount of attorneys’ fees the lower courts ordered her to pay to opposing counsel, but otherwise it upheld the lower courts’ decisions.

Speak with a Rhode Island Estate Planning Attorney

Estate administration can be complex and adversarial. If you need representation in a probate dispute, consult an experienced Rhode Island estate planning attorney about your case. At Bilodeau Capalbo, LLC, our estate administration attorneys represent clients in Rhode Island, Massachusetts, and Connecticut. We can help clients with trusts, estate administration, and real estate issues, including resolving boundary line disputes, negotiating and drafting purchase and sale agreements, handling land title issues, and fighting adverse possession claims. Call us at 401-300-4055 or fill out our online form to arrange a consultation.

Why Newlyweds Need to Plan Their Estates

Why should newlyweds care about estate planning? Because everyone – young or old, married or single – needs to protect themselves and those they love.

Unfortunately, many couples spend more time planning their honeymoon than they do planning the best way to protect each other.

What Happens Without an Estate Plan?

This fallout of becoming incapacitated or dying without an estate plan is serious, expensive, and painful. It often causes financial ruin and family discord, lasting for generations.

Without an estate plan:

• You will leave your spouse and the rest of your family in the dark – they won’t know what you would want to happen if you became incapacitated or died. This often leads to family fights as each individual champions for what she thinks you would have wanted.
• You’ll leave a huge burden on your loved ones to make tough decisions about medical heroics and the withdrawal of life support.
• The court or state law, not you, will decide who makes health care decisions if you are unable to make those decisions yourself.
• A judge, not you, will decide who raises your children.
• The court can lock down your assets so even your spouse has to get court permission before making a financial move.
• Any assets you leave to loved ones can be taken by their divorcing spouses, bankruptcy creditors, medical crisis creditors, predators, and frivolous lawsuits.
• You may accidentally disinherit your spouse and your children.
• Your beloved pet could end up in a shelter or euthanized.

What Should You Do?

We invite you and your new spouse to contact Andrew Bilodeau to set up a meeting. We’ll walk you through how to protect each other and those you love; how to protect your beloved pets; and how to protect your assets and make things easier for you and your families. Call now 401-300-4055; we look forward to hearing from you.

When someone dies, their property goes through what is called the probate process. During the probate process, a person’s assets are all gathered together and placed into an estate. From the estate, taxes are paid, and the deceased’s debts and other liabilities are settled. Whatever remains in the estate will be distributed according to the deceased’s will. In the event the deceased does not have a will, then their property will be distributed according to the Rhode Island intestate laws.

A will distributes the property of the deceased according to their wishes. However, including property in a will does not avoid the probate process, which can be both costly and lengthy. Although not necessary in every case, some individuals may benefit from creating a Rhode Island trust before their death.

What Is a Trust?

A trust is a property right held by one person for the benefit of another person. A trust is created by a settlor, maintained by a trustee, and held for the benefit of the trust’s beneficiaries.

There are several different types of trusts, each with a specific purpose. A few common types of trusts are:

• Living Trust: a trust created during the settlor’s life for the benefit of another person
• Testamentary Trust: a trust that is created through an individual’s will
• Revocable Trust: a trust in which the settlor retains sole control of the trust assets
• Irrevocable Trust: a trust in which the trustee is given sole control over the trust property

Individuals who hope to avoid the probate process may open a living trust for the benefit of their loved ones once they die. Once property is placed into a living trust, the settlor no longer legally owns the property. Thus, when the settlor dies, the trust assets will not typically go through the probate process.

Of course, Rhode Island trust and estate law is quite complicated and anyone considering drafting a will or creating a trust should consult with a dedicated Rhode Island estate planning attorney for assistance.

Are You in Need of an Attorney?

If you are looking for a dedicated Rhode Island estate planning attorney to assist you in planning for your family’s financial future, contact the experienced team of attorneys at Bilodeau Capalbo for a free consultation. At Bilodeau Capalbo, we assist individuals of varying net worth plan for the future of their family by creating trusts, wills, and planning instruments. We are also experienced in Rhode Island real estate law. To learn more about how we can help you with your situation, call 401-300-4055 today.

See Related Posts: Rhode Island Intestate Laws and the Importance of Drafting a Will, Rhode Island Divorce Lawyer Blog, December 28, 2018.

Can a Rhode Island Marriage Be Annulled or Declared Void?, Rhode Island Divorce Lawyer Blog, March 4, 2019.

If someone dies without a Rhode Island will, they are said to have died “intestate.” Each state has a set of laws that apply when someone dies intestate. In Rhode Island, the intestate laws are contained in Rhode Island General Laws, Chapter 33-1.

Intestate laws can be complicated, and the manner in which a decedent’s property is divided depends on whether they are married and have children or grandchildren. The laws prioritize the spouse and children of the deceased; however, parents and siblings can end up with the entire estate if someone dies unmarried and without children. In many cases, Rhode Island intestate laws may not make sense and may not adequately effectuate the wishes of the deceased.

For example, under Rhode Island’s intestate laws, if someone dies with a spouse but no children, the spouse will not inherit everything. Instead, the spouse will be able to use the decedent’s real estate for the remainder of their life and will receive up to $75,000 worth of the decedent’s real estate. The spouse will also receive $50,000 of the decedent’s personal property as well as 50% of the balance.

If, however, someone dies with a spouse and children or grandchildren, the spouse will inherit a life estate for the decedent’s property as well as half of the decedent’s personal property. The remainder of the property will do to the deceased’s descendants. If, however, someone dies with no spouse or children, their parents will inherit the entire estate. If someone dies with no spouse, children, or parents, then the deceased’s siblings will inherit the whole estate.

Leaving the resolution of an estate up to the Rhode Island intestate laws can create uncertainty and may end up wasting a significant portion of an estate’s value through unnecessary legal and administrative fees. That said, while intestate laws are strictly enforced, they can easily be avoided by drafting a will.

Do You Need Help Drafting a Rhode Island Will?

If you do not currently have a Rhode Island will, or if you have a will that needs updating, contact the Rhode Island trust and estate attorneys at the law firm of Bilodeau Capalbo. At Bilodeau Capalbo, we have extensive experience assisting clients with all types of Rhode Island estate planning issues, including the drafting and modifying of Rhode Island wills. To learn more about how we can help you more effectively and efficiently prepare a Rhode Island will, or deal with any other estate planning issues, call 401-300-4055 to schedule a free consultation today.

See Related Posts: Common Law Marriage in Rhode Island, Rhode Island Divorce Lawyer Blog, December 12, 2018.

The Division of Property Following a Rhode Island Divorce, Rhode Island Divorce Lawyer Blog, November 29, 2018.

People Involved in a Trust

Before we can dive it to what happened in this case, it’s important to understand the roles and titles of the different people in the trust. The person who provides the property that will at some point go to someone else is called the “settlor.” As explained above, the person (or entity) who is entrusted with the money is called the “trustee.” Finally, the person or people who will get the property at a specific point or upon the occurrence of certain events (such as the death of the settlor), are called “beneficiaries.

Set Up of the Trust

The settlor created this trust in 1928. The Bank of America was the trustee during all relevant time periods. The directives for the trust instructed the trustee to equally divide the net income from the trust between the grantor’s wife, his three daughters, and “their issue” at the time of his death. (“Issue” in this context means children.) The trust itself will terminate (and disburse the rest of the property) 21 years after the deaths of the settlor’s wife and daughters and two other people called “the Rickers.” (There are legal reasons to set up the trust this way, but they are beyond the scope of this post and too complicated to get into here.

Current Case

The plaintiff in this case is the grandchild of the settlor. Barbara, the settlor’s daughter and the plaintiff’s mother, is deceased. After her death, the court divided her interest in the trust among her four children, including plaintiff. Of Barbara’s four children, plaintiff is the only one without children. Thus, if he dies before the trust terminates his interest would go to his siblings. However, the plaintiff did adopt a son, though he was over 18 when the plaintiff adopted him. It is unclear whether they had a typical parent-child relationship or whether he did this solely for inheritance purposes. The question in this case is whether his adopted son could be a beneficiary of the trust even though he was adopted when he was over 18.

It is relatively rare for a court to decide on an issue before it occurs. Typically, there needs to be an actual case or controversy before the court will hear a matter. The court here held that as there were so many things that could happen between now and the termination of the trust, they were unwilling to decide this issue now but would consider it if this situation came to pass. At the time of the decision the Rickers were alive, though in their nineties, but there was still at least 21 years to go. There are lots of ways that the situation may look different than the plaintiff contemplates then. For example, the plaintiff may still be alive, or his son may be deceased, or a number of other scenarios that would affect his rights to the trust. Therefore, the court decided to hold off on the matter for now.

Contact One of Our Experienced Rhode Island Estate Planning Attorneys Today!

People of all ages should have up to date estate plans in case the worst happens. The experienced Rhode Island estate planning attorneys at Bilodeau Capalbo, LLC can help you to create the estate plan that works best for you and your loved ones. An up to date estate plan may help your family save money and headaches after you die. Contact us today by using the form on this website or calling us at (401) 300-4055. The initial consultation is free.

See Related Posts: 2018 Rhode Island Estate Tax Limits Rhode Island Superior Court Dismisses Petition to Amend the Trust

Estate Tax Basics

Estate tax is an often misunderstood area of the law. The vast majority of people are not subject to an estate tax because the sum value of their assets fall under the limit. However, the tax is still important for everyone to be aware of so they can plan appropriately. Just like you pay both federal and state income taxes, you could be subject to both state and federal estate taxes.

Estates that are over $5,450,000 are subject to the federal estate tax. The federal government currently imposes a maximum tax of 40% on amounts over that limit. So if someone dies with assets worth $6,450,000, only the million dollars that are over the threshold will be taxed. Therefore, if the 40% tax rate applies, the total federal estate taxes owed would be $400,000. Unless the estate plan designates otherwise, the taxes are usually taken out before the money is distributed to beneficiaries. In this example – ignoring the state estate tax for now – the distributable estate would be $6,050,000.

States usually have a lower estate tax exemption amount, and Rhode Island follows this rule. The 2018 estate tax exemption amount in Rhode Island is $1,537,656. Estates above that amount are currently taxed at a maximum rate of 16%.

Exemptions

No matter the size of your estate, there may be ways for you to pass on your wealth and assets without incurring the federal or state estate tax. One of the most common exemptions is the spousal exemption. If you are legally married, you can leave everything to your spouse without incurring federal or Rhode Island estate tax. Another way to avoid paying estate tax is through trusts. To avoid these taxes, the trusts need to be structured in specific ways, but most irrevocable trusts will usually qualify. Individuals are also allowed to give up to $14,000 each year to any given individual without counting as part of the gift tax exemption. Finally, many people avoid estate taxes through charitable bequests. If you are planning to give money to registered charities – either during life or as part of your estate plan – these amounts are usually exempt from taxation, but you should consult an estate planning attorney to make sure.

Experienced Rhode Island Estate Planning Attorney

Every situation is different and the laws and amounts change frequently. Thus, you will want to consult with a knowledgeable Rhode Island estate tax attorney to make sure that the exemptions apply and to help you preserve as many of your assets as possible. The legal team at Bilodeau Capalbo, LLC can help you with all your estate planning needs. Call today at 401-300-4055 or fill out the contact form on the right side of the page so we can schedule a free consultation today!

Related Posts:

Rhode Island Superior Court Dismissed Petition to Amend the Trust Wills vs. Trusts

The trust was established in 1928 by the settlor. Rhode Island Hospital Trust served as the initial trustee, and thereafter replaced by its successor entity, Bank of America. Following the settlor’s death, the trust directed the trustee to equally divide the remaining net income from the trust to the benefit of his wife, three daughters, and their issue. The trust further provided for its termination 21 years following the death of the settlor’s wife and daughters and two other named individuals (collectively, ‘the R. family’). At the time the case came before the Rhode Island Superior Court, members of the R. family were the only surviving named individuals, both in their nineties.

Petitioner’s mother, one of settlor’s daughters, became a beneficiary of the trust following the settlor’s death. Petitioner and his three sisters succeeded to their mother’s interest in the trust upon her death. In 2001, at the direction of the superior court, the daughter’s interest in the trust was divided into four separate shares—one for each of her children. The 2001 judgment further provided that “[i]f, at any point, a child of [the daughter] is deceased and no issue of that child survives,” then the deceased child’s share of the trust will be divided evenly among the surviving siblings.

At the time the case came before the court, the petitioner was the only sibling without biological children. Thus, if the petitioner died prior to termination of the trust, per the 2001 judgment, his interest would be divided equally among his surviving siblings. While the petitioner did not have any biological children, he did have an adopted son. Notably, the child was adopted while an adult by the petitioner. He sought to have the child succeed to his interest in the trust if the petitioner died prior to its termination.

Respondents submitted a motion to dismiss the petition. Both parties submitted supplemental memoranda in support of their positions.

Petitioner sought a court declaration that under the trust and the facts and circumstances as they existed at the time of the trust’s creation, the petitioner’s adopted son may succeed to his interest in the trust to the same extent as would a biological child. In the alternative, the petitioner sought leave from the court to amend the trust to permit the child to succeed to the petitioner’s interest in the trust or to allow the other beneficiaries of the trust to disclaim their interests in the petitioner’s share of the trust.

Petitioner contended that the current statutory language—excluding children who were adopted when they were over the age of eighteen in the definition of “issue”—was not in effect when the trust was created. Rather, the petitioner asserted that the statute in effect at the time of the trust’s creation did not differentiate between adopted and biological children. Similarly, the petitioner argued there should be no distinction between children adopted before or after the age of eighteen. Petitioner further contended that because of the statutory language in effect at the time of creation, and because the trust did not contain a distinction between adopted and biological children, there was no intent—on behalf of the statute or the settlor—to exclude adopted children.

Turning to the petitioner’s request to allow the other beneficiaries to disclaim their interest in the petitioner’s share of the trust, he asserted that this option would not require a modification: merely the consent of the other beneficiaries. Petitioner claimed that it was anticipated that some or all of the beneficiaries would consent to the proposed modification or disclaim their interest in the petitioner’s share.

Respondents argued that the petitioner’s claim of a vested remainder interest subject to divestment should not impact the court’s ultimate determination regarding whether the requested relief was proper. They maintained that the petitioner’s request remained hypothetical and, therefore, a justiciable controversy did not exist. Respondents further contended that the petitioner acknowledged that he did not have unanimous consent to amend the trust and should not have been allowed to continue litigation in hopes of convincing the other beneficiaries to consent.

Petitioner asked the court to declare that the petitioner’s adopted son, who was adopted after the age of eighteen, could inherit his share of the trust. Through this request, he sought to avoid the possible distribution of his share of the trust to his siblings, as directed by the 2001 judgment. For that to occur, however, a number of precipitating events had to transpire. Specifically, the trust provided for its own termination 21 years following the deaths of several named individuals. The R. family were the only surviving individuals named in the trust. For the scenario contemplated by the petitioner to occur, both of the R. family had to die, and the petitioner had to perish before 21 years passed following their deaths. Clearly, as the petitioner duly recognized, these events had not yet occurred and were not guaranteed to occur.

Alternatively, the respondents moved to dismiss the petitioner’s request for declaratory relief because they contended his request was not properly before the court as it did not present a justiciable controversy. Petitioner asserted that his request was proper pursuant to § 9-30-4. Moreover, the petitioner argued that the mere fact that the respondents filed a motion to dismiss evidenced a justiciable controversy.

The court found that the petitioner’s request was premature and therefore not ripe for declaratory relief. Accordingly, petitioner’s request for declaratory judgment was denied. Because the petitioner’s request was improperly before the court, the court granted the respondents’ motion to dismiss without prejudice.

Petitioner alternatively sought leave to amend the trust or permit the other beneficiaries to disclaim their interest in his share of the trust. Petitioner relied on Section 65 of the Restatement (Third) of Trusts for authority. Section 65 provides for termination or modification of a trust “if all of the beneficiaries of an irrevocable trust consent.” Termination or modification of the trust could not be compelled by consent of the beneficiaries, however, if it “would be inconsistent with a material purpose of the trust.” In that event, the beneficiaries could seek either “the consent of the settlor or, after the settlor’s death, . . . authorization of the court if it determines that the reason(s) for termination or modification outweigh the material purpose.”

In furtherance of his effort, the petitioner obtained the assent of two trust beneficiaries. Moreover, the petitioner argued that this modification did not conflict with the material purpose of the trust. Respondents, however, did not provide assent to the modification of the trust. Absent unanimous consent, Section 65 does not contemplate modification of a trust. Accordingly, the petitioner’s motion to amend the trust was denied.

Petitioner presented an additional “alternative theory” under the 2001 judgement by which he could modify his share of the trust without the consent of the other beneficiaries. He posited that the court could determine that modification of his sub-trust merely requiring the consent of that particular sub-trust, i.e., the petitioner. The court declined to rule on this argument at that time.

Bilodeau Capalbo, LLC’s experienced estate planning attorneys are ready and willing to help Rhode Island residents navigate their trust and estate issues. Call 401-300-4055 to schedule your complimentary consultation today.

More Blog Posts: In Rhode Island, Negligent Misrepresentation Applies in the Adoption Context Rhode Island Supreme Court Holds That Defendant is Entitled to an Annuity Policy Rhode Island Appellate Court Upholds Dismissal of Property Owner in Broken Staircase Injury Lawsuit

Wills

A Will is a legal document that provides for named beneficiaries that you chose, that will inherit your property upon your demise. In addition, the Will provides for the appointment of an individual to ensure that the mandates of the Will are carried out. The enforcement and validity of the Will becomes effective only upon your death and only covers property that is owned solely by you or jointly with another as tenants in common. The Will does not affect any of your assets that are owned as jointly with rights of survivorship, by the entirety or assets held in a Trust. In a Will you have the ability to appoint a guardian for your minor children, care for pets and provide a directive concerning your remains. Although creating a Will is faster and less expensive than a Trust, the benefits of a Trust are greatly realized in avoiding your Will from being open to inspection by the public and made part of a public record, through the expensive and time consuming probate process.

Trusts

Trusts are more complicated and can be very complex, but a very briefly, a Trust can hold title to a variety of assets – stocks, life insurance policies, real property, cash, etc. The Trust is managed by you or an individual or company you appoint. Unlike a Will, a Trust becomes effective immediately allowing the Trust to be used for disability planning as well as estate planning. A significant advantage of a Trust is that you prevent your family from having to deal with the costly lengthy public probate process. Do you really want the public to know what you were worth and who received your assets? Also of significance is the ability to prevent the distribution of Trust property to minor children until an appropriate age, something a Will cannot accomplish. Want to keep your wealth in the family and prevent it from falling into the hands of an in-law? A Trust provides that protection. To summarize, a Trust will allow your loved ones to avoid probate thus preventing your financial and family matters from becoming public record, a Trust allows you to plan in the event you become incapacitated so you can control the destiny of your assets during incapacitation and after you have passed.

At Bilodeau Capalbo, LLC our Rhode Island estate planning lawyers can provide you with a comprehensive analysis of your assets and recommend an estate plan that suits your family’s needs. Our Rhode Island estate and probate lawyers will advise you on the best methods to avoid estate taxes to preserve wealth and assets. Don’t put the burden on your loved ones, contact a Rhode Island will and trust lawyer at Bilodeau Capalbo, LLC today before it’s too late at 401-300-4055.