My mom is failing in health. She had set up a Trust appointing Brother has Trustee while living
and myself as PR upon death. She also has a Will appointing me as PR. We both have
been appointed in her Health Advocate. Brother has basically "taken control" over her finances, as I suppose that is his responsibility. What steps can I do to prepare myself once mom passes away? Since this is a Trust, do I need to file the Will with the County? Can I proceed with
the Trust Administration without legal representation?
Estate Planning Attorney
Yes the Will does need to be filed with your County Probate court upon her death. However, when a person establishes a Living Trust, normally any Will is what's called a 'Pour-Over Will' - in that assets which may not have been moved into ownership by the Trust would be 'poured over' into the Trust for distribution. Best thing is for BOTH of you to sit down with an Estate Planning attorney, review the documents, and if Mom still has capacity, have the Trust amended to appoint both of you as her Co-Trustees.
My answer is based on the limited facts presented. It doesn’t create an attorney-client relationship. Use the ‘Find-A-Lawyer’ search engine at the top of this page and follow proper legal advice.
Estate Planning Attorney
Your question is not clear.
I assume you meant to say that you are the trustee
If that is the case-you will need a complete inventory of the assets upon death
and a death certificate.
Your attorney will prepare an "acceptance of trustee" document and obtain a tax number.
You will then submit to financial organizations and become the trustee.
You will pay any debts, taxes and finally make distributions.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
Criminal Defense Attorney
Meet with an attorney to assist you. Depending upon how the trust is funded, you may not need to open a probate estate.
My answer to this question is for general informational purposes only and does not establish an attorney-client relationship. You should seek the assistance of an attorney to determine the best approach and potential consequences for your situation.
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Estate Planning Attorney
You and your brother (and Mother if she is competent) should meet with an experienced estate planning attorney who can help you determine what, if anything, should be done while your Mother is still alive. Perhaps there are assets that are not in her Trust that can be put there before her death.
Once your Mother dies, whoever is appointed as Trustee upon her death will take charge of the Trust. While a Trustee can proceed without legal representation, it would be prudent for the Trustee to at least consult with an estate settlement attorney so he/she knows what they need to do.
The person who has possession of your Mother's Will at the time of her death has to file it with the probate court for safe keeping. This does not mean, however, that a probate estate will need to be opened. The estate settlement attorney will be able to advise you as to whether or not a probate estate will need to be opened.
Except for Federal Tax issues, my answers are limited to Michigan law since I am a licensed attorney in the State of Michigan. Moreover, answers to questions are for general purposes only and do not establish an attorney-client relationship.
Landlord / Tenant Lawyer
I agree that your question is somewhat unclear. If you are appointed as the Personal Representative of the Will, but your brother is the Successor Trustee of the Trust, then it would be your brother who would be administering the Trust.
Also, I do not agree that you have to file the Will with the Probate Court. If all of the assets are in the Trust, I do not believe that it is necessary to do this. The only reason you would file the Will would be to open an Estate, and the only reason you would open an Estate would be if there were assets that are 1) not joint with any other person, and/or 2) need to be retitled and are not in the Trust. Otherwise, it is not necessary to open an Estate.
You could have the Will put in Safekeeping at the Probate Court if you want, but this, too, is optional.
I sounds to me like you would all benefit with a consultation with a Will & Trust attorney to make sure that the documents read the way your mom intends, and that all of the assets have been titled in the name of the Trust. This is very important. One of the reasons you create a Trust is so that your heirs do not have to probate your estate. It completely defeats the purpose if all of the assets have not been titled in the Trust.
Please schedule an appointment with a Will & Trust attorney for you, your brother, and your mom, so that you all can be sure that your mom's Estate is going to handled the way she intends. You should do this sooner, rather than later, because it will be too late if you haven't done it before your mom passes away. If she is unable to visit an attorney's office, many attorneys will come to her. Just call a few until you find one that will.
Best of luck to you,
John J. Keenan
This response applies to Michigan law only. This initial response to your question(s) is for general purposes, only, and is based upon the limited information you have provided. Therefore, this general answer should not be relied upon as a reason for your action or inaction. This response does not establish an attorney-client relationship; such a relationship may only be established by the signing of a written retainer agreement, and the payment of the agreed upon retainer. Please call me, or another attorney of your choice, with more details, and for an appointment to discuss same. Thank you for this opportunity to address your question(s).
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