Can he fight the trust & sell the house?

Another thing to remember is that your husband as Trustee, has to have funds to manage the Trust and estate, and diversion of financial assets to defend a suit is going to significantly affect his ability to do that.

Worried, something that needs to be remembered during the speculation on what might happen is that no worthwhile attorney is going to waste time on a suit with nominal or limited recovery potential. I'm not suggesting that there might not be merit to the partner's claim, but if an attorney thinks there's not (and there's a lot of family friction), he/she isn't going to expend the time.

There also has to be a specific cause of action, or request for preventive or injunctive relief, such as the partner's concern about being stuck with maintaining the house and paying the upkeep cost. From the description of the situation, it's not clear what options would be available, or viable. There are a lot of "moving parts" to this situation.

If the partner doesn't have money for a retainer deposit, and already is behind on Federal taxs, he might not be able to retain a qualified attorney. It can't be expected that an attorney is going to expend time and money w/o some level of confidence in a recovery.

As to payment for the funeral, wills typically have a standard provision that monetary assets of the estate go first to payment of last expenses, which includes a funeral.

And anyone who wants to sue has to have "standing", i.e., his kids have to have a stake in the issue, if they want to be party plaintiffs.

I reiterate: Since you're llegitimately concerned, see an attorney NOW and determine how to protect your MIL's asses NOW b/c it may be too late if action isn't taken, and this situation is already complicated enough.

Thats what I think too, Rovana. And I don't blame him. I mean, I admit, I don't care for the guy, I think he's shady and I think MIL knows more than we give her credit for and that that is why she made sure he gets nothing when she passes. When he made the buyout comments to me, he let on that there are domestic issues between the 2 of them but the fact remains, they planned to live out the rest of their days together, they paid the house off early, MIL retired 2 years ago, they had plans and dreams and now all of that has changed with her rapid decline. I don't blame him for not wanting to stay in the house when she passes! Its a house full of memories, I myself will have a very hard time being in that house after she's gone!

Yes my husband is executor of the trust. I don't know if he realizes how much work its going to be BUT he is competent enough for the job, thats the reason MIL made him executor and DPOA and medical POA. She knows he can handle the job and he will do right by everyone involved. He's just not like me, he's not proactive about things. I've shared on another thread the problems with MIL and the care her partner is giving, I told him, as soon as the lung transplant was denied, that all of that would happen and that they needed a family meeting with MIL asap so that everyone knew what SHE wanted because her partner is not competent and will do what he wants and its going to be a problem. My BILs wife had the same discussion with BIL but nobody ever called a meeting to talk to mIL. MILs partner is already showing signs of......despair. Maybe thats the wrong word. But he's going into panic mode because it looks like she's in the final weeks of life and his financial security is going to end, he owes a lot of money to the IRS. he has no job. He's already starting to get rid of things in and around the house! As soon as she passes, he's going to snap. I have no idea if he will sue the trust because of his financial situation but I do think he is going to want to get out of the house and he's not going to walk away from it with nothing. (I don't blame him for that either).If there is a suit, yes there will be money but I don't know if it can be used for the suit and I don't know if all involved will want to defend a suit with their shares? MILs retirement--just the money she actually contributed, as well as the balance of her deferred compensation plan, plus several life insurance policies, will be distributed amongst her 3 kids. But his 2 kids would be part of a suit and they for sure have no money to fight but I could see them signing away their rights, they don't even know anything about this, they don't know they each get 20% of the house.. By the time MIL passes, I don't know if her bank accounts will have been drained either. There's also an issue with the cost of the funeral. The funeral home is charging $5000. The cemetery hasn't been mentioned and i don't think she bought a plot yet. I was told by her partner that they paid $300 to the funeral home and that my husband is to pay the remainder out of MILs savings account before he distributes the money to his siblings BUT MIL does not want that money to go to the funeral, its to go to her kids. He told my SIL something entirely different-that the funeral was paid for. The good thing here is, we have an estate attorney, the one who prepared the trust and whatnot and he has said we can call him at any time. I just think in light of certain things, we needed to be prepared.

Sounds like he would like to see some money so he can relocate and change his life after his partner dies. What good would a house be that you cannot sell, need to maintain and don't really want to live in?

Worried, if it's "revocable only by the Settlor (the person who created the Trust)", and there's no other wording to the contrary, that would likely be a Revocable Trust. An Irrevocable Trust would have language preventing ANY changes by ANYONE.

As to the bank account of which he has a 1/2 share, and which is to be divided amongst 5 children, MIL cannot will or dispose of HIS share. She can only dispose of her 1/2 share, so the kids would get 1/5 of her 1/2 share, and he would retain his share.

However, I've read the posts and your second comment 2 - 3 times and am still having some difficulty sorting everything out.

I understand the basic issue is that the partner may wish to reject his share. He may wish to "sue the Trust" which would essentially mean suing the Successor Trustees. Would that be your husband? If so, does he want to become involved in defending a suit against the Trust? Are there thousands of dollars to defend such a suit?

If he sues, he has to "pray" (legal terminology) for certain relief, i.e., he has to ask for something specific. What would that be? Would it be to surrender his share, to sell the house now? If he wants to get out of the arrangement, he can in fact execute a document by which he relinquishes his rights to the trust assets. Or he can sue to extinguish the inheritance rights of the 5 kids.

You wrote that you're 90% "sure" the deed reflects transfer of ownership to the Trust (i.e., it was "funded" into the Trust). Someone (an attorney) needs to be 100% sure, by examining the Deed. If it's a typical funded house, it would indicate that the property at such and such an address (add legal description) is conveyed to the (MI'sL) Trust under date of _________ (and some more legal verbage). If there's any mention of conveying it to him, specifically, he can relinquish his rights in the property.

I've also seen documents signed by heirs who wanted to relinquish their entire right to their inheritance. This has to be handled by an attorney; it's not a DIY job. That is one option for him. Then the issue would be what the alternate arrangements are, i.e., whether the property would be distributed in accordance with others terms of the Trust.

There should be options in the Trust for eventualities if he does not want the keep the property. If not, then you really have a Pandora's Box.

I think, though, that this situation is complex enough that w/o seeing the specific documents it's hard to give accurate advice based on what we're reading. Specific wording needs to be addressed.

If I were in this situation, I'd see an estate planning or elder law attorney with expertise in contested Wills and Trust; that would include litigation experience. You can get more succinct advice after an attorney is able to examine all the documentation. We can offer suggestions, but there could be one little paragraph or clause that vitiates everything we interpret.

It's worth it to get this straightened out ASAP.

worriedinCali, trusts can be problematic if they are not updated as situations change, which appears to be the case of your MIL. While she is still living, her trust may still be revocable -- but not if it says it becomes irrevocable if she becomes incapacitated and she is, in fact, legally incapacitated (terminal illness and hospice do not sufficient to determine incapacity). But, even if the trust is revoked, it sounds like your husband who has DPOA will still face problems due to the "bad blood" in your blended family. He should study his mom's DPOA document very carefully to see what authority it gives him and limits to that authority, if any. Then if he's not absolutely sure what to do, he should seek legal advice, after which he can decide if he wants to remain as his mom's DPOA agent and future executor.

As for what name the deed to the house is in, you can check that with the county recorder's office, either on-line or via a telephone call.

Your MIL's boy friend could talk to an attorney about fighting the trust in court, but what will most likely happen is that he'll spend a lot of money and not gain much, if anything. As an aside, I'm not sure that MIL's boy friend is being treated unfairly if he paid $70k for a house that he gets to live in for the rest of his life and his kids get to share in it as an inheritance. Presumably, he knew what the situation was long ago, when he moved in or when the trust was created.

Regarding the joint bank account of your MIL and her boyfriend, I doubt that a "Joint" account will be split among heirs while one of the joint owners is still living, but it could depend on exactly how the owners' names are listed, e.g. with "or" or with "and." Your husband with DPOA can talk to the bank about this right now.

Thanks for the response! We are in California and I know the state doesn't recognize common law marriage but I don't know if they are considered equals, everything is split 50/50. it looks like its an irrevocable trust--it says it is "revocable only by the selor while living" or something like that. It says my husband is the trustee upon MILs death and if he cannot or will not act as trustee, that it then goes to MIL's partner. I am pretty sure deed was changed by the estate lawyer--well he turned in paperwork to county/courts and IIRC it had to do with the deed to the house because it was turned over to the trust when the trust was created. As far as the will it says only that all possessions in the house go to her partner. Theres also mention of a joint bank account that gets split amongst the 5 kids when she dies but again how can that be? half of that account is her partners. he shouldn't have to give them his money now?he's also said its HIS money in the account so i suspect he will drain the account before anyone can touch it. 
His 2 kids are named as beneficiaries of the house along with MILs 3 kids. An estate attorney prepared a will, a trust, a DPOA and a medical POA all at once. My husband is both DPOA and medical POA as well as executor of the estate. So if its irrevocable, its a done deal then? He can't even sell the house and give half to MILs 3 kids? unless of course all 5 kids agreed to that? Yes this is definitely Pandora's box! Nothing has even happened yet but I know its going to get messy as soon as she passes, since its a blended family with multiple interested parties and bad blood amongst some! I'm the type to wonder and worry now which is why all of this occurred to me recently because shes declining steadily and then the other day out of nowhere her partner started talking about being angry over the situation with the house!

WorriedinCali, blended families can work out wonderfully until the parents become elderly. Being together 25 years, one would need to see how State laws view that since they were not married. Some States view it as equals, other's don't. Then a Trust is part of the picture. Family gets upset and they are no longer happy :(

This is a pandora's box. The boyfriend needs to talk with an "Elder Law Attorney" to find out what are his rights. Especially since he paid $70k [correct?] to help pay off the house. It could be viewed as a "gift".  Wonder how your Mom-in-law's Deed is written? How her Will is worded? Sometimes in blended families, the thought of changing the Deed and Will are put on the back burner. The boyfriend and his children may not be even mentioned. Let's hope they are.

If the Trust is a Revocable Trust, only Mom-in-law can make changes to the Trust. If it is an Irrevocable Trust, then no changes can be made.