Assets Not Already in Trust Must Be Moved There During Probate

For many people who create estate plans involving living trusts, one of the primary benefits is the ability to avoid opening a probate administration after they pass. Unfortunately, this benefit only applies if the assets were moved into the trust prior to their passing. Any assets that are not held in trust, owned jointly with someone else who has survivorship rights, or that have a named beneficiary designation must pass through probate. Typically, estate plans involving living trusts include a pour-over will. This means that once the probate is open and the will is allowed, the asset will be transferred to the trust for distribution.

Administering a Trust When There Is a Pour-Over Will

The administration of a trust that receives assets under a will requires the initiation of a probate administration. To do so, the personal representative must file a Petition for Probate. If the trustee of the trust is not the same person as the personal representative, then the personal representative lists the trustee as one of the beneficiaries on the form. If the trustee and the personal representative are the same person, each individual beneficiary of the trust must be listed as a beneficiary on the Petition. In addition to filing the Petition for Probate, the personal representative must also file the following documents:

  1. The original will
  2. Notice of Petition to Administer Estate
  3. Duties and Liabilities of the Personal Representative
  4. Confidential Supplement Form
  5. Order for Probate
  6. Letters

After the various required steps are taken, the probate court may then allow the will. Once the will has been allowed, the personal representative is then free to move the assets of the estate into the trust. From there, the trust administration can be carried out.

Clearly, administering a trust is not always straightforward. Many potential caveats or issues can arise that impact how the administration is handled. For more information about implementing estate plans, we encourage you to sign up for our free newsletter today!

James F. Roberts
Founder and owner of the Law Office of James F. Roberts and Associates, a premiere estate planning law firm