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Mom had pourover will, need to open probate and let our disinherited sister know?

Springfield, IL |

Mom had a will that gives everything to her trust. In her trust, the estate passes to 3 of 4 children. Is probate required if all property is held by the trust? Do we have to find our sister just to let her know she's not getting anything? We haven't spoken in years.

Attorney Answers 4


  1. Likely if all of mom's assets are in the trust then you will not need to open a probate estate. However, you need to follow certain rules when administering the trust. Therefore, I would strongly suggest that you hire a probate attorney in your area to assist the trustee do his/her job correctly!

    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.


  2. Unless your mother funded the trust you refer to during her lifetime with all of her property, then the will will have to be probated in order for the rest of her assets to "pourover" into the trust. As to notification of your sister, that will depend on state law which appears to be Illinois law from your question. Hopefully an Illinois lawyer, will pop in here and answer that.

    Hope this helps. If you think this post was helpful, please check the asnwer was a good answer tab below. Thanks. Mr. Geffen is licensed to practice law throughout the state of Texas with an office in Dallas. He is authorized to handle IRS matters throughout the United States and is licensed to practice in US Tax Court as well as The Court of Claims. This answer is provided as a public service and as a general response to a general question, it is not meant, and should not be relied upon as specific legal advice, nor does it create an attorney-client relationship.


  3. Your summary does not have enough information to answer your questions. WERE all of mom's assets titled in the trust? If so, then there is nothing to pass through probate. You should still file the Will with the court. But you would not need to open an estate or provide notice to your sister.

    If there are assets that need to pass through probate, then the Will WOULD need to be admitted and your sister would need to be given notice, because she would have the right to possibly object to the Will.

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. 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.


  4. Your sister has 2 years to contest the trust. If you open a probate and admit the will (you do not need to appoint an executor), she will have only 6 months to contest both the will and the trust. There is a statute in Illinois shortening the statute of limitations.

    If you are confident in the will/trust being validly executed while your mother was competent and not under undue influence, you may wish to open the probate and give your sister notice.

    Does she know that mom is dead? Did she have contact with mom? Is she likely to make a problem (or even understand the purpose of giving her the statutory notice)?

    Good luck

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