The estate Will specifies by name "three" beneficaries that are
to receive equal distributions while removing "any other hiers under
the provisions of Probate Code Section 6454 or any other subsequent or
related statue" (California).  The estate Trust was later amended to
add a "fourth" beneficary with instructions to disburse in equal
portions.
Should the estate to be split three or four ways?  
Can a fourth beneficary be added to the Trust or is he disqualified by the Will?
Which is the controlling document for determining the beneficaries in California?

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Request for Question Clarification by pafalafa-ga on 18 Mar 2006 13:28 PST

You asked which is the 'controlling document', but there's rarely a
clear-cut answer to a question like that.

If there are ambiguities in a will, the trust -- or courts -- must
look elsewhere for interpretation.  In cases of an outright failure of
a will to address the fact that an estate may belong to more than one
person (typically, husband and wife) -- while the will may be that of
a single person -- then measures are often taken to re-work the
details of the will, no matter how explicit they may seem to be.

I don't think anyone can give you an unambiguous answer to your
question.  If you can provide more context for the situation -- are
the courts involved? -- perhaps we can offer some pertinent
information.

Let us know what you think the best way to proceed on this is.

Thanks,

pafalafa-ga

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Request for Question Clarification by pafalafa-ga on 18 Mar 2006 13:40 PST

For instance, have a look at this rather convoluted case:


http://www.assetprotectionbook.com/CA_Mahan-Rudnick_2004.htm
MAHAN v. RUDNICK

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Request for Question Clarification by richard-ga on 19 Mar 2006 05:58 PST

Can you type out the provisions of the will that you're talking about
[you can use initials for the names of the beneficiaries, etc.].  I
can't tell from your question what the will really says.
You should do the same for the trust (not the whole document of
course, just the parts that your question is about]
Looking forward.

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Clarification of Question by jack1425-ga on 26 Mar 2006 21:49 PST

Thank you for the interest to my question.  I'll write out portions of
the documents to illustrate what is my question more percisely and
clearly.

"The First Codicil (1989)to the Last Will and Testament of ___" reads
as follows, " I hereby revoke Article First of my said Last Will and
Testament and substitute therefor the following:
First    I am an unmarried woman, and I have theee children now
living, namely 'X', born__, 'Y' born__, and 'Z', born __.  I have no
other living or deceased children, either natually born to or adopted
by me.  I am intentionally not providing herein for any person who may
have been a stepchild of mine or who might qualify as an heir of mine
under the provisions of Probate Code Section 6454 or any subsequent or
related statute." (California)

This seems in conflict with the following from the Second Amendment
(2004) to __'s Living Trust. It reads "Third  Article SIX of said
Trust is hereby amended to read as follows:  Upon the death of the
Settlor, the trustee shall divide the trust estate into as many equal
sahare as shall be necessary in order to provide one such share for
each of the following persons who shall survive the Settlor for a
period of thirty days: the Settlors's children X,Y, and Z, and the
settlor's grandchild 'O'.  A share3 thus estabilished for a child of
the Settlor's grandchild 'O' shall be held and administerred by the
Trustee for the benefit othe beneficiary thereoof as hereafter
provided.

The same attorney wrote all documents and never mentioned 'O' before
or after as a bneficary, other than for personal property.
So, how should this conflict between the Will which limits the
beneficaries to the Settlor's three shildren be resolved when the
Trust adds a fourth, a grandchild, to also get an equal share?
The Will's Second Codicil, signed at the same time as the Trust Second
Amendment, does mention this individual is to recieve specific
personal items so it was known he needed also to be added as an heir,
right?
As one of the children is the Excutor and Trustee charged with
dividing and distributing the estate, a good way to proceed might be
what?
Thanks jack1425