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Do I need to probate a Will if there was a Trust and I am Trustee?

Do I need to probate a Will if there was a Trust and I am Trustee?

Full question:

If a Trust has been prepared and the Trustor passes, and I am the Trustee, do I need to file the will with anyone since we will not need to do probate?

Category: Trusts
Date: 04/07/2025
State: California

Answer:

Even though there was a Trust it is prudent to make a Will. This is because there may be property that does not pass through the trust but instead passes through the Will. This depends on what property was owned by the trust, whether the conveyances to the trust were done properly and whether there is property that was not in the trust, etc. If there was property that passed through the Will you would need to consider whether probate is required or not depending on the value of the property and other factors.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

What is the 120 day rule for trusts?

The 120-day rule for trusts generally refers to the time frame in which a trustee must notify beneficiaries after the trustor's death. This rule ensures that beneficiaries are informed about the trust and their rights within a reasonable period. It's important for the trustee to adhere to this timeline to avoid potential disputes or claims against the trust. However, specific requirements can vary by state, so it's advisable to consult local laws or a legal professional for guidance.

What happens to trust when the trustor dies?

When the trustor dies, the trust typically becomes irrevocable, meaning it cannot be changed or revoked. The trustee is responsible for managing and distributing the trust assets according to the trust document's terms. If the trust was properly funded, the assets should pass to the beneficiaries without going through probate. However, any assets not included in the trust may require probate to be distributed.

How does a trust get distributed after death?

After the trustor's death, the trustee must follow the instructions outlined in the trust document to distribute the assets. This process involves identifying and valuing the trust assets, paying any debts or taxes, and then distributing the remaining assets to the beneficiaries as specified in the trust. If the trust is properly funded and managed, this distribution can occur without going through probate.

Do trusts become irrevocable upon death?

Yes, trusts generally become irrevocable upon the death of the trustor. This means that the terms of the trust cannot be altered or revoked. The trustee must then administer the trust according to its provisions, ensuring that the assets are distributed to the beneficiaries as intended by the trustor. Irrevocability helps to protect the trust assets and the beneficiaries' interests.

What happens to a trust when the trustor dies?

When the trustor dies, the trust is usually considered irrevocable, and the trustee must manage the trust according to its terms. The trustee will distribute the trust assets to the beneficiaries without the need for probate, provided the assets were properly transferred into the trust. If any assets were not included in the trust, those may need to go through probate to be distributed according to the trustor's will or state law.