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Probate not needed if you have a trust?

Discussion in 'Non-Vegas Chat' started by makikiboy, Dec 5, 2018 at 2:41 PM.

  1. makikiboy

    makikiboy VIP Whale

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    My mom passed away the day before Thanksgiving. I am executor of her estate. She has a Trust and a Will and I have no idea how to do these things since I never did it before.

    Any probate lawyers in the house?

    Anyway, I was told that I didn't need to go through probate if she has a trust and will. Is that correct? I heard that attorneys will charge a lot for probate so I'm trying to avoid the thing if possible. My mom has a few assets, 2 condos and her family house in addition to her many $$ assets.

    I have to wait for the death certificate before I can send out notices. It looks like I can handle most of her $$ assets by sending out the death cert and informing them of who will get the $$.

    Another question, in her trust she speculated giving a lump sum to one of our deadbeat relatives. This guy was a real scammer, he wanted her to cosign for a mortgage when he didn't even have a job. I think he expected her to pay for the mortgage for him. Luckily she got smart enough to realize what he was doing but not before he took her for some $$. For instance she was paying him $1000 a month to do the yardwork, which basically amounted to watering her yard once or twice a week. This went on for 4 years and he did ask her for $75k for help and she willingly gave him the money. I swear she probably gave him over $200k (from the records I found). Even then her trust said to give him $25k. I really don't want to give this guy any money, is there any way of avoiding this? I have a joint account with her but because it was a joint account I don't feel that money should be part of her estate since I should get the money on her passing. Her trust stipulated that we give him money only if we had the cash to do so but what if I cleaned out her account, saying that what she has will only take care of funeral and fixing up her family house (work is being done to fix up the house, new balconies, beams, etc.).

    I know the guy doesn't have a copy of the trust so what if I "forget" to give him the money? I know, god might get me if I don't but I really hate it that the guy took her for money and continues to take her for money.
     
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  2. Mudhen

    Mudhen Smart Axe

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    Sorry to hear about your mom. You have my condolences.

    Laws vary greatly from state to state. I'm not pretending to offer advice, since I'm not an expert on these things. But it seems like a good place to start, would be with the attorney who drew up the trust, and will. I'm sure they could point you in the right direction.
     
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  3. smerrian

    smerrian View from Bally's

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    Sounds like you're toying with possibly litigious circumstances. It could save you insurmountable grief if you spend a bit now on legal advice. Mudhen's advice on where to start sounds right.
     
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  4. Wallew

    Wallew Low-Roller

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    I would like to second mudhen’s advice. I would also like to say get a second opinion.

    I will just say that I went through a situation with a close relative about 2 1/2 years ago. I pretty much did what mudhen suggested and things got kind of screwed up.

    I will just say that not all lawyers are created equal. ALWAYS, ALWAYS get a second opinion, when it comes to legal matters that you are unsure of!!! Whatever it cost for a second legal opinion, it is worth its weight in gold.
     
  5. LolaDoggie

    LolaDoggie VIP Whale

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    I got no legal advice. But, I can tell you this. A family member like that is not worth the energy. Just pay them out and tell them to gtfo. Gravy train has come to a stop. You won't understand why your mother kept that going for so long. But, trust me when I say it's not worth it. Some of you know the kind of bs my sister pulled when my mother died. Honestly, just follow the wishes to the letter as quickly as possible and get out. It's a thankless job.
     
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  6. zoobrew

    zoobrew High-Roller

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    As an executor you have legal responsibilities and "forgetting" to do those responsibilities can land you in big legal trouble including going to jail for fraud.
    My mom had a trust, but I still had to go thru probate for a few small things that were outside of the trust. I had the trust lawyer do it and it wasn't very expensive. Don't allow them to charge based on a percentage of assets and be the most efficient as possible when dealing with the attorney as they charge usually by the 1/4 hour.
     
  7. nfajgmbr03

    nfajgmbr03 Low-Roller

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    Sorry for your loss.

    This isn't legal advice but here we go.

    It's not fun to see someone taken advantage of but you're at an ethical crossing in the road. Either you adhere to her wishes or not. I would say it's pretty hairy to "forget" things and knowingly hide part of the estate. Creep or not it was your mother's wishes and myself personally I'd honor it. Not really for him to benefit but to carry out the will.

    Also I think seeking legal advice would be a great idea. Doing so would be investing in this being handled a safer way legally. I wish you the best in all of this matter as I know it's not a pleasurable endeavor.
     
  8. Mudhen

    Mudhen Smart Axe

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    One more thing I'll throw out. When looking for an attorney, I always check the Martindale-Hubbell ratings. An attorney with an "AV" rating gives me a warm and fuzzy feeling.

    https://www.martindale.com
     
  9. zoobrew

    zoobrew High-Roller

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    A little off topic, if your mom had a lot of personal property in the homes consider hiring a company to conduct an estate sale. The 33% commission may seem expensive, but unless you have a lot of experience pricing these types of items and contacts to buy them, a good company will net you more money and leave you with much less items for you to depose of. I asked the real estate company for a list of recommendations and then found one that best fit with my moms type of personal property.
     
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  10. Chuck2009x

    Chuck2009x VIP Whale

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    You need a lawyer and an accountant. If you know who drew up the trust, I'd start there. I don't know what "speculating" in a trust means.

    Anything that's not in the trust, the executor administers. Anything in the trust, the trustee(s) eventually administer.

    The assets in the trust are probably part of the estate for tax purposes. You probably still have to file estate tax returns even if no tax is owed.

    If there's any significant amount involved, this is not something you want to mess around with on your own. One wrong move will cost you 10x what the lawyer will cost.
     
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  11. ronc

    ronc VIP Whale

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    Pay the person. They may know they were in the trust and they could come after you and compel you to produce the records of all bank accounts and other information.

    I'm no lawyer, and I never stay at a Holiday Inn Express, but it just seems like you stand to lose more by cheating on the trust distribution than you do to gain. The $25k won't likely make either the person or you any happier than you already are with your life and you will always know that you did not follow her wishes.

    I hope you can find a good, reasonably priced attorney. No small talk with them...all business...until you are sure the small talk time does not get billed!
     
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  12. Joe Strummer

    Joe Strummer VIP Whale

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    Makikiboy -
    Sorry about your Mom's passing.
    My Dad died 3 mos ago.
    He left a trust.
    Me + my 2 sisters + brother had to clean out a house / garage / basement
    of 50 yrs of accumulated stuff - floor to ceiling.
    It was almost overwhelming !........it took a long time.
    I don't know your situation - but getting "help" is necessary - if you find yourself in same position ?
    >
    We went right to the lawyer who drew up the trust.
    Worked out fine.
    3 months later --- we're still going thru paperwork.
    And we haven't had a "reading of the trust." --- geography is involved
    >
    Pay the "deadbeat" + be done with him ( as others, have posted )
    >
    We are trying to sell my father's house
    It is a long process....cos my brother's ( family ) wife - won't move out !!!
    She thinks she has a right to it.
    ( A long story........but she was told "Out by January 8th " ).......we'll see ?
    And that's why I say "pay the deadbeat + get rid of him"
     
  13. nostresshere

    nostresshere Mr. Anti Debit Card

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    If that guy is such a con man or scammer - he is gonna find out somehow and make your life miserable. Since you do have the money, pay him.

    As to the joint bank account. You need to clarify if it really is your money or her money. Just because you are on the account with signatory powers does not mean it is YOUR money. Be careful of that part.

    Again, find a lawyer and get the cost up front. Be careful as some will spend lots of time going over stuff, billing hours along the way.

    As to giving stuff to people, keep in mind any tax issues on either side.
     
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  14. mdee

    mdee VIP Whale

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    Her assets have been transferred to a Trust which avoids Probate. You should sit down with a Trust Attorney.
    Also it's best to Honor Her Wishes and keep your Personal Feelings towards the family member Out of it.
     
  15. zoobrew

    zoobrew High-Roller

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    I think the housing market is near the current top and is showing signs of cooling off, so I would try to get the real estate on the market as soon as possible. I learn that the hard way as my mom died in the spring of 2008 and it took over 9 months to sell even with many price cuts. Maintaining a vacant house is expensive, especially if any distance is involved.
     
  16. TrewBrew

    TrewBrew High-Roller

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    I was wondering...a living trust can go on after the person has died, this varies by state. Maybe you can avoid paying the man this way. But my feeling is that just give him the money and forget about him.

    And I will water the lawn for $1000 a month if you are near by
     
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  17. nostresshere

    nostresshere Mr. Anti Debit Card

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    If that "guy" is such a piece of work - I would make sure you notify him that his services are no longer needed - ASAP. Otherwise, he is gonna expect that $1,000 to keep coming in. Just a heads up.
     
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  18. smartone

    smartone VIP Whale

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    I'm very sorry for your loss @makikiboy. Having to deal with grief at the same time as probate sucks... I too recommend getting an attorney.

    My folks executed a trust several years before Dad passed. Mom has progressively worsening dementia and a couple years ago I, as the successor trustee, had to have her declared incapable of making any further business or health related decisions. That was provided for in the trust and getting two-(2) doctors and their attorney to sign off was easy. Though Mom's Memory Care Center burned down in the recent Camp Fire (Paradise), she's been easily relocated thanks to the documents I have and likely will be with us for some years to come.

    On the other side, my mother-in law just passed in September and left a will. What a pain in the ass! Since my wife still works full-time and I recently retired, I do as much as I can to organize things for her. Thank God, her mother had a good attorney to assist me. In her case, there are 2 other beneficiaries (sons of a deceased sister) who do absolutely nothing, but complicate the hell out of everything, as the attorney seeks their concurrence on every big move (sale of properties, sale of vehicles, etc.). They slow play us on their signatures, drag their feet and have done nothing to help. In the trust, I didn't have to deal with any of that... the trust empowered me to make the decisions. I have siblings and consult them from time to time and certainly keep them informed, but I make the decisions.

    I'm sure there may be times when a will is better than a trust, but not in our 2 recent experiences. Good luck with it all, but a knowledgeable attorney to guide you through probate is worth the coin.
     
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  19. The Rumor

    The Rumor VIP Whale

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    Sorry for your loss.

    Really, you're asking two separate questions:

    1. Do I have to honor mom's will and trust agreement? The answer to this is yes as long as the agreements were written by someone of sound mind. With respect to the bank account, I'd ask a lawyer to confirm how that should be handled under the legal documents if you have any uncertainty.

    2. Do I have any recourse for elder abuse? That's a separate question for legal counsel.
     
  20. The Rumor

    The Rumor VIP Whale

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    It depends upon your circumstances, but often can be easier and cheaper to TOD almost everything than to bother with the trust. Get TODs and named beneficiaries on your house, cars, and accounts, and you're down to a de minimis estate

    I struggle to justify spending 2k on a trust vs 100 on a will plus calling the bank to put my kids names as TOD on my accounts