Skip to main content

Can an estate in a Trust still go to probate?

Quincy, IL |

My fathers estate was settled months ago. He left his estate, in a Trust, to me. He did not include my sister in his Will. She had not been in touch with him for many years, did drugs, is a felon, etc. My fathers attorney handled the will back in 2008. Now, my sister is requesting that the estate go to probate, stating there in fact was NO will, and wants independent administration. I was always with the understanding that a Trust was safe, and a persons wishes would be upheld. How could an already settled estate, where the assets were already transferred, go to probate? At this point, letters of administration were requested but the court date has not yet happened. My father had no property, just investments.

Attorney Answers 6


  1. You question is not clear. How was your dads trust funded? Was that done during his life? Did you give notice of the trust when your dad died?

    What do you mean your dad's estate was settled? What was the total amount of personal property including cash and securities held in your dad's name at his death? Total value of real property?

    Was the original Will ever filed with the court?

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.


  2. I think you have answered your own question. If all of the assets were in a trust at the time your father died, the terms of the trust will govern the disposition. Whether or not there ever was a "will" becomes irrelevant because there is nothing to probate, and the issuance of letters of administration is an idle act, not to mention a waste of everyone's time and money. Given your sister's background, it seems she has the capability of being a big nuisance but not much else. You should consult with an experienced probate attorney in the county where the court proceeding is pending.


  3. I agree with Mr. Millers last comment. You need to hire a probate attorney to guide you and, if needed, represent you in court.

    I'm not saying your sister is right but if she is challenging you in court you are best off with an attorney.

    Good Luck!

    Legal Disclaimer: Paul A. Smolinski is licensed to practice law in the State of Illinois only, and as such, his answers to AVVO inquiries are based on his understanding of Illinois law only. His answers are for general information about perceived legal issues within this question only and no response to any posted inquiry should be deemed to extend any right of confidentiality between you and Mr. Smolinski, to constitute legal advice, or create an attorney/client or other contractual relationship. An attorney/client relationship is formed only by specific agreement including an evaluation of the specific legal problem and review of all the facts and documents at issue. We try to insure the accuracy of this information, but we cannot guarantee its accuracy. The reader should never assume that this information applies to his or her specific situation or constitutes legal advice. Therefore, please consult competent counsel that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.


  4. When you say your sister is requesting that the estate go to probate, how is she doing that? Has she hired an attorney and has the attorney filed a will executed by your father? Many times people will create a trust and execute a "pour over" will, which simply states that anything not already in the trust goes into the trust. If your father had executed a regular will before he created the trust, and forgot to destroy the old will which she has in her possession, then she might have a way to stir up some trouble for you. I highly recommend that you consult with a probate attorney in the area where your father passed away. Hopefully, you had an attorney to administer the trust. I would recommend starting with that attorney. Good luck.

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. LEGAL DISCLAIMER I am licensed to practice law in the State of Illinois and have an office in Kane County. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you this answer helpful.


  5. Your situation is unfortunate, but you must attend to it directly. It's a little like getting a cold, you are best served by facing it, treating it and getting past it. We do not expect that you can give a complete description on this forum, but your attorney will discuss the pertinent issues, and prepare the response in the Probate case. If the assets were all funded into the trust, then the Probate case may be very short to conclusion.

    If you choose, please select "helpful" or a "best" answer, below. LEGAL DISCLAIMER I am licensed to practice law in the State of Illinois and have an office in Kendall County, Illinois. However, I serve clients in many counties within the state of Illinois. My areas of practice involve Estate Planning (Trusts/Wills/Powers of Attorney/) and Probate, Business and Real Estate Counseling. Please take note that the above answer does not create an attorney/client relationship, and that all AVVO responses from both me and my attorney colleagues are for general legal education, only. Information obtained from AAVO or any other internet location should never be used as a substitute for competent legal advice from a licensed attorney that practices in your state. Please also be advised that the passage of time can often diminish the likelihood of success, and some matters will be barred by a Statute of Limitations. So, do not hesitate in seeking an attorney to specifically advise you. Finally, any reference to a specific law or theory of law is my best thought on the topic based upon a brief consideration of the topic, not a complete analysis of your specific situation. Best wishes as you seek resolution of your matter, and I hope you this answer helpful.


  6. I agree with the previous responders, and especially the philisophical response about treating a cold. Sometimes, we need to keep things in perspective. As other said, the key is whether all of the assets your father owned were transferred into the trust. If they were, there is nothing to probate. If anything was not transferred into the trust, then those things are subject to the probate process. If your father's will directs everything not in the trust to be transferred to the trust, there will be no benefit for your sister, though the representative of the estate is entitled to be paid for handling the administration of the estate. If there is anything to be done, and she does it, she could be compensated for it. As yu can see, there are many possibilities, the one certainty is that you should retain an attorney and deal with it.

    This answer is not intended to provide legal advice or create or imply an attorney-client relationship. This answer contains only general statements and opinions of the law and should not be relied upon for advice or application to a particular circumstance or set of facts. No attorney/client relationship is formed by the publishing of this answer or responses to it. No information contained herein is a substitute for a personal consultation with an attorney. You should not disclose any private or confidential information publicly, whether on the Internet or otherwise, and you should consult with a lawyer licensed to practice in your state to obtain customized legal advice for your unique situation.Visit www.batavialaw.com or call (630) 406-5440 for more information.

Wills and estates topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics