What to look for in probate attorney and is one needed
June 14, 2022 10:05 AM Subscribe
Dad died several months ago. Mom passed away years ago. He had a will and and left his assets like the house, 2 cars and a boat in a revocable trust, of which I become (became?) the Trustee and beneficiary. Supposedly this was done to avoid probate court. But what does that all mean?
I called the lawyer who put the trust together, but they haven't returned my calls for two weeks. Can I take all this to another lawyer? What does it mean with all these assets, do they transfer to me or do they stay property of the trust? If so, how does that work? Do I still have to go probate court, several friends say I do, but supposedly the trust avoids that?
I called the lawyer who put the trust together, but they haven't returned my calls for two weeks. Can I take all this to another lawyer? What does it mean with all these assets, do they transfer to me or do they stay property of the trust? If so, how does that work? Do I still have to go probate court, several friends say I do, but supposedly the trust avoids that?
You need to talk to the attorney.
And it depends on the state.
And the terms of the trust. Was the trust signed? Do you have a notarized copy of the trust? Do you have official copies of the death certificate? Was the trust executed after your mother died?
IANYL. However I was the trustee of my father's estate. If it works as it should, if the trustor, your father, put everything in the trust, and you are the trustee, then everything listed in the trust is your property if the terms of the trust were met.
First thing you do is get a notarized copy of the trust (both hard copy and PDF). Also get multiple official copies of the death certificate.
Second thing is get copies of his paperwork: bank records, utility bills, insurance records, mortgage records, etc.
Then start calling entities. For instance, call his bank -- or go there -- and provide copies of the trust and the DC to them to start the process for transferring his assets into your name. Call the county and find out how to change the county records to put his real estate assets in your name. Call the utilities and change the account information.
If your father had an IRA or other income, you will need to determine whether and how that can transfer to you.
It's actually a lot of work, but it's still better than probate. If the trust was set up properly and the terms for transferring the property to you were met, you should not have to go to court.
posted by suelac at 10:25 AM on June 14, 2022 [3 favorites]
And it depends on the state.
And the terms of the trust. Was the trust signed? Do you have a notarized copy of the trust? Do you have official copies of the death certificate? Was the trust executed after your mother died?
IANYL. However I was the trustee of my father's estate. If it works as it should, if the trustor, your father, put everything in the trust, and you are the trustee, then everything listed in the trust is your property if the terms of the trust were met.
First thing you do is get a notarized copy of the trust (both hard copy and PDF). Also get multiple official copies of the death certificate.
Second thing is get copies of his paperwork: bank records, utility bills, insurance records, mortgage records, etc.
Then start calling entities. For instance, call his bank -- or go there -- and provide copies of the trust and the DC to them to start the process for transferring his assets into your name. Call the county and find out how to change the county records to put his real estate assets in your name. Call the utilities and change the account information.
If your father had an IRA or other income, you will need to determine whether and how that can transfer to you.
It's actually a lot of work, but it's still better than probate. If the trust was set up properly and the terms for transferring the property to you were met, you should not have to go to court.
posted by suelac at 10:25 AM on June 14, 2022 [3 favorites]
If it works as it should, if the trustor, your father, put everything in the trust, and you are the trustee, then everything listed in the trust is your property if the terms of the trust were met.
You need to speak with the attorney.
IANAL, but it's my understanding that the moment your father passed away the revocable trust became an irrevocable trust and it can no longer be altered nor can assets be removed from it without following the rules of the trust. Depending on those rules, the trust might continue to exist (it might not give directly give you the property contained within, even if you're the trustee--it might provide the assets for the benefit of you or something) and you'll need to get a taxpayer ID from the IRS and file taxes annually because the trust is now it's own entity with assets, income (if the assets are sold), etc.
posted by RonButNotStupid at 10:36 AM on June 14, 2022 [1 favorite]
You need to speak with the attorney.
IANAL, but it's my understanding that the moment your father passed away the revocable trust became an irrevocable trust and it can no longer be altered nor can assets be removed from it without following the rules of the trust. Depending on those rules, the trust might continue to exist (it might not give directly give you the property contained within, even if you're the trustee--it might provide the assets for the benefit of you or something) and you'll need to get a taxpayer ID from the IRS and file taxes annually because the trust is now it's own entity with assets, income (if the assets are sold), etc.
posted by RonButNotStupid at 10:36 AM on June 14, 2022 [1 favorite]
If it works as it should, if the trustor, your father, put everything in the trust, and you are the trustee, then everything listed in the trust is your property if the terms of the trust were met.
Everyone has good advice above. The reason people put things into a trust, generally, is so that assets will
- transfer immediately upon death to the named person (obviously, subject to the exact terms of the trust)
- not be a matter of probate which is public record (so no one knows that you, for example, inherited a bunch of cash or a house, or whatever)
- not have to wait around for probate which can take a very long time
Depending on what specifically was in the trust you may not have to go through probate, or you may only have to do perfunctory probate. You will need a copy of the will and a copy of the trust documents. Once you have those things you can get another attorney (hopefully a wills & trusts attorney) to help you work through the process.
What happened in my situation was my mother left her house and some money to me and my sister in a trust, but still had a car and a few other things NOT in the trust. So her assets transferred directly to me and my sister that were in the trust (because of how it was set up) and the few other things went through a speedy probate but did not technically become mine until after probate was finished (they are owned by "the estate" until probate closes). Then the trust was dissolved which meant transferring the ownership/title of the house from MOMTRUST to JESSANDKATE. As people have said, this can vary and trust documents can be weird and complex, so worth checking this out.
The lawyer who set up the trust should have the trust documents and I'd really step up trying to get ahold of those documents even if you don't ultimately work with that lawyer.
posted by jessamyn at 12:05 PM on June 14, 2022 [1 favorite]
Everyone has good advice above. The reason people put things into a trust, generally, is so that assets will
- transfer immediately upon death to the named person (obviously, subject to the exact terms of the trust)
- not be a matter of probate which is public record (so no one knows that you, for example, inherited a bunch of cash or a house, or whatever)
- not have to wait around for probate which can take a very long time
Depending on what specifically was in the trust you may not have to go through probate, or you may only have to do perfunctory probate. You will need a copy of the will and a copy of the trust documents. Once you have those things you can get another attorney (hopefully a wills & trusts attorney) to help you work through the process.
What happened in my situation was my mother left her house and some money to me and my sister in a trust, but still had a car and a few other things NOT in the trust. So her assets transferred directly to me and my sister that were in the trust (because of how it was set up) and the few other things went through a speedy probate but did not technically become mine until after probate was finished (they are owned by "the estate" until probate closes). Then the trust was dissolved which meant transferring the ownership/title of the house from MOMTRUST to JESSANDKATE. As people have said, this can vary and trust documents can be weird and complex, so worth checking this out.
The lawyer who set up the trust should have the trust documents and I'd really step up trying to get ahold of those documents even if you don't ultimately work with that lawyer.
posted by jessamyn at 12:05 PM on June 14, 2022 [1 favorite]
tl;dr
Your questions can all be answered easily by any decent estate lawyer. There 's no need to use one who doesn't return calls (from a new client!) or the original lawyer who prepared the papers. If you're in NY state MeMail me and I'll recommend mine.
posted by JimN2TAW at 1:29 PM on June 14, 2022 [1 favorite]
Your questions can all be answered easily by any decent estate lawyer. There 's no need to use one who doesn't return calls (from a new client!) or the original lawyer who prepared the papers. If you're in NY state MeMail me and I'll recommend mine.
posted by JimN2TAW at 1:29 PM on June 14, 2022 [1 favorite]
I want to clarify one thing because this confused me when I made my trust - assets aren't really "put into" a trust like putting money in a bank account, and listing them on the trust document itself is kind legally meaningless as far as I am aware. The house, boat, and cars have to be titled in the name of the trust. A trust is like a fictitious person, if the trust is not on the title then it doesn't belong to the trust. Trusts can also be listed as beneficiaries in the will, on life insurance policies or retirement accounts.
posted by muddgirl at 1:31 PM on June 14, 2022 [2 favorites]
posted by muddgirl at 1:31 PM on June 14, 2022 [2 favorites]
Can I take all this to another lawyer?
Yes, a lawyer who specializes in estate planning would probably be your best bet. Get your own lawyer, there probably isn't any reason the original lawyer needs to be involved, and if there is some reason the original lawyer needs to be contacted you would probably want your own lawyer representing you anyhow.
Note: if you (or any future person finding this question) is on disability, search for a lawyer with experience in trusts for people on disability specifically.
posted by yohko at 3:53 PM on June 14, 2022 [2 favorites]
Yes, a lawyer who specializes in estate planning would probably be your best bet. Get your own lawyer, there probably isn't any reason the original lawyer needs to be involved, and if there is some reason the original lawyer needs to be contacted you would probably want your own lawyer representing you anyhow.
Note: if you (or any future person finding this question) is on disability, search for a lawyer with experience in trusts for people on disability specifically.
posted by yohko at 3:53 PM on June 14, 2022 [2 favorites]
This thread is closed to new comments.
For assets in the trust, you will need to unfortunately read the trust. The trust should specify how to pay out to the beneficiary (you) and the timeline for doing that. Sometimes it pays out immediately for adult beneficiaries. Sometimes it is like 25% at age 25, 25% at age 30, and so on.
The will covers any assets that weren't titled to the trust or don't have a direct beneficiary. Many states have a quick and easy small estate affidavit, some will require you to go to probate for the will no matter what.
The third category of assets are ones that have a direct beneficiary. This is typically life insurance and retirement accounts. Sometimes other kinds of bank accounts. These pay out directly to the named beneficiary, bypassing the trust and the will.
posted by muddgirl at 10:23 AM on June 14, 2022 [3 favorites]