Pour over will and Trust

Asked 8 months ago - Topeka, KS

Dad died 4 years ago. His will stated to transfer all to Trust, but my sibs did nothing. They were executors. When Mom died last year, sibs did nothing again. So nothing has been put in the Trust.

It is a very small estate. If I am appointed administrator of the estate, will I be able to transfer assets (personal effects and a car is all there is) to the Trust so they can be distributed? Or is there an easier way?

Mom left a note - one page designated who gets what of personal effects and who gets the car -the Trust says she could do that. Can that note be declared the will and follow it as a small estate? The will is filed but not probated. It was filed for preservation only. Had to be done within 6 mos in KS.

Attorney answers (3)

  1. Joseph Franklin Pippen Jr.

    Pro

    Contributor Level 20

    4

    Lawyers agree

    Answered . Personal effects and car are not usually part of the trust and can be distributed outside the trust without probate.

    The answer given does not imply that an attorney-client relationship has been established and your best course of... more
  2. Joseph Michael Pankowski Jr

    Contributor Level 18

    4

    Lawyers agree

    Answered . I agree with Attorney Pippen. Typically, a will provides that "tangible personal property" (which includes furniture, jewelry and automobiles---things you can put your hands on, other than real property, stock & bond certificates) passes outside the trust directly to named individuals. The reason? Tangibles are not good assets for trusts. Would you want to be a trustee responsible for making sure that jewelry isn't subject to a family member's five-finger discount? No. Thus, trusts normally hold only real property and financial assets. Good luck to you.

    This information is presented as a public service. It should not be construed to be formal legal advice nor... more
  3. Maximillienne Elliott

    Contributor Level 11

    3

    Lawyers agree

    Answered . You have my condolences for the loss of your parents. I agree with my colleagues; personal effects are typically distributed via the terms of a special bequest provision in a will. Whether the note you're describing can be designated the most recent and valid will depends on probate law in Kansas and what is required to create a valid will.

    However, I would still say that determining whether that note can be used as a valid will or codicil will cost more in time, resources, and family accord than what it would be to title personal property and a car to a trust, which is unusual and time-consuming itself, and then distribute the property. Presuming your siblings are also trustees, is there a reason for their inaction? Have you discussed this with them?

    The role of executor and trustee are different; the executor fulfills the terms of the will and the trustee fulfills the trust terms. If you were designated as trustee, then you can distribute the items according to the terms of the trust. If you are not trustee, then you have to consult with the designated trustee or trustees. If he or she or them are not doing what is required, then you could retain an attorney to have them removed and you appointed. Yet, this is a lot of trouble and expense for a very small estate.

    If there is anything such as a "summary administration" or a small estate affidavit, like there is in Illinois where I practice, you may be able to use such a document and process to nominate yourself as personal representative of your mother's estate, with your siblings' consent, and distribute the property that way.

    Also, with respect to the statute of limitations issue, it is unclear as to exactly what had to b done within 6 months - filing of the will or probate. In Illinois a will must be filed within 30 days of death, but even if it is not, probate, which can be costly and time-consuming can be opened long after a person's death if necessary.

    Talk to your siblings and determine whether summary administration is possible.

    Best of luck to you.

    The answers and information I provide here, via a link, or any other reference do not create an attorney-client... more

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