Dear Len & Rosie, My parents have a revocable trust naming my brother and I as beneficiaries. My parents want to change the trust eliminating my brother.

Their trust is very simple and their assets are moderate. Those consist of their home and bank accounts. Total assets are below  $500,000. Would it be easier to dissolve the trust and have them add me as joint owner of the home with right of survivorship and adding my name to the bank accounts as joint owner with right of survivorship? My brother also has a power of attorney that needs to be withdrawn. How do they do that?

John

Dear John, Your parents have the right to leave their assets to anyone they want. They may certainly disinherit your brother if that’s what they want. What you need to understand is that when your brother finds out, he’s going to be upset and angry, and he’s going to be looking at suing you. This isn’t to say your parents shouldn’t change their estate plan. Our point is that since there is a prospect of litigation, they should make an effort to provide you with the best legal defense if there is a dispute after their death.

They shouldn’t take any shortcuts. Ideally they should see an attorney, without you in the room, the law office lobby or even the parking lot. An estate plan, even a deed, can be overturned on the basis of undue influence — a stool with three legs. The first is a “confidential relationship.” Your parents trust and confide in you.

The second is “active procurement.” If you set up the appointment and join in the meeting it can look like it was all your idea, not your parents. The third leg is “unjust enrichment,” which really just means that you’re getting more than your nominally fair share. If all three conditions are met, the gift to you is legally presumed to be invalid. The burden of proof will be on you to show that this is what your parents really wanted.

They should see an attorney and amend their trust. The attorney and his or her staff will be disinterested witnesses as to your parents’ mental capacity and their intent to favor you over your brother. You could certainly testify as to exactly why your parents are leaving it all to you, but who’s going to believe you? Your inheritance could be cut in half depending on the outcome.

We would not recommend putting you on the deed to their home under most circumstances. Your parents could change their mind about leaving it all to you. They could want to sell the home. If so, why should they ask you for permission? And if you were to get sued, their home could wind up getting a judgment lien recorded against it. It’s best for your parents that they leave the home to you in their trust.

As for the power of attorney, they just need to sign a new one that revokes the one naming your brother as attorney-in-fact. If your brother has a copy of the old power of attorney, they should notify him of this change. If he doesn’t have a copy, then he doesn’t need to know.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or www.lentillem.com. Len also answers legal questions each weekday, noon to 1 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.