I came across this article the other day and thought it was worth sharing and discussing because the situation comes up A LOT!
Here’s the beginning of the article:
Dear Len & Rosie,
Mother died and my sisters and I are her co-executors and co-trustees. We were told by the bank that we are unable to open an estate account to access any of her funds unless we put the estate in probate. Why did we have to have a trust if the estate still has to go through probate? When my mother made her trust she was assured that there would be no probate and that she wouldn’t put her children through what she went through when my father died. Are there any banks that will honor the will and trust as she made them?
I don’t want to ask her attorney because it costs so much. Where are my civil liberties if no matter what mother wanted done with her hard earned money, the court gets to make the final ruling? Why are lawyers telling people to set up living wills and trusts if they do not protect our personal rights?
Mimi
The lawyers in the article discuss CA law, not FL law, so disregard any specifics they gave. FL probate laws are very different – if you die with more than $10,000 in your individual name, your estate will likely need to go through the probate process.
But Mimi’s letter shows the confusion that arises when the assets of someone who spent the time and money to create a trust end up in probate. As the lawyers said, we don’t know what was said between Mom and her lawyer. We don’t know what kind of trust she had – was it a cheap 8-page boilerplate trust that a paralegal prepared after a 15-minute conversation with Mom, or a 90-page custom trust that a lawyer spent hours creating just for Mom? Did the lawyer explain the importance of funding the trust (retitling all assets into the name of the trust)? Did Mom think Dad was going to take care of that, but he didn’t? Did Mom understand what she was supposed to do?
Who knows.
The lesson to be learned is that if Mimi had sat down with Mom and her estate planning or elder law attorney, this issue could have been discovered and corrected before Mom died.
As with most everything in life, if you’re not being proactive, you’re going to be forced to be reactive.
Other articles you may find interesting:
Why Would I Need a Durable Power of Attorney?
Ready to make sure everything’s in order for your loved ones in the event you become incapacitated or die? Give Manasota Elder Law a call at 941-444-5958. We’ll help you determine whether you’re all set, or whether there are still some things that need to be done to protect what’s most important to you … your family.
