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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.

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Attorney answers 6


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?

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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.


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!

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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.

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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.

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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.

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