Karen:
The general rule is that amendments to a trust require the same type and level of formality that the execution of the original trust required. So crossouts and initials will generally not stand up as valid amendments to the document.
If the trust was well prepared originally, there will usually be a clause in it that states that it can be amended or revoked in whole or in part by the grantors at any time. That same paragraph will usually have some language that states how those amendments are to be done. Crossouts and initials are not on that list. After the grantor passes away, the trust becomes irrevocable (which also makes it un-amendable from that point forward except by a court). Any cross outs done by the grantor are suspect.as to their validity. Any cross outs done by the successor trustees after the grantor passed away are almost for certain invalid.
If there were a desire that the trust be construed with its crossouts, I would expect that it would be necessary to either get everyone's consent, or that it would be necessary to file the trust with the probate court and to ask them to construe how the trust should be read while giving deference to the apparent wishes of the grantor.
The grantor typically is the only party with an original trust, unless they had a corporate trust company as trustee (like a big bank in that area). So their would be no place to record changes to the trust.
Living trusts are enforceable because the state laws honor their creation. A trust is just another entity, perhaps more closely related to a corporation than anything else. It exists because of a writing on paper, and it is governed by documents which give authority for someone (in this case the trustee) to manage its assets for a stated purpose.
I used to describe it that when the grantor died, all that really happened is that he or she resigned as trustee (which meant that a named successor had to step up to fill the vacancy), and that we have turned the page to plan B as far as the set of operating instructions (distribution terms) are concerned that we now have to follow.
The trustees have full powers as usually are granted them in the trust, but usually that is only to administer the trust according to its exact terms. Being a trustee is not something that a person can legally manipulate to their own benefit. They have a fiduciary responsibility to the beneficiaries to manage the trust properly.
I am presuming that the grantor has passed away. If it were my call the trustees should then be giving a copy of the relevant distribution terms to the beneficiaries. In some cases, where it was the decedent's wish that no one be told what anyone else was getting from the trust, we have limited how much information we gave to different individuals, but otherwise we normally just sent everyone interested a full copy of the trust.
I always preferred to run a trust administration in a similar manner to a probate administration. People need a copy of documents so they know what we are dealing with. We would prepare an inventory so everyone knows what the asset base was. There would be tax returns to take care of, both for the trust (fiduciary tax returns) and for the decedent (personal income tax returns), and possibly even estate tax returns. There are bills, and possibly debts of the decedent to pay. There should be an accounting of the trust's activity. My preference is that beneficiaries be kept informed as we move through those steps, and receive copies of things such as the inventory and the accountings.
If the trustees are not being forthcoming with information, including copies of the parts of the trust that govern your interest in the trust, and that has been going on for any significant period of time, in order to break the logjam you may have to file a petition with the probate court and ask them to review the activities of the trustees. Aside from taking that step, you don't have a lot of leverage over the trustees.
I think I've at least touched on all your questions. I hope this has helped. Let me know if you have any followup questions. If none, please remember to click on the ACCEPT link so that I may receive credit for working on this topic with you. (I’d greatly appreciate it!)
Thank you,
Dan
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The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.
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