Sanford J. Mall, J.D., CELA, is the founder and senior partner of Mall Malisow & Cooney, PC, a holistic elder care and estate planning law firm. The firm is located in Farmington Hills, Michigan.
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Hello,
I am the Power of Attorney for my godmother. I have had a will prepared for her and it is signed and filed with the County probate. We did this to have something prepared in case of her death. It is pretty comprehensive and clear. We have been talking about a Trust instead of the Will in order to get through the process of estate (or probate) distribution, simpler. How can the Will be replaced by a Trust or can a new Will be drawn up and reference it to a Trust? Also I understand that the fee to draw up a Trust is much more than a Will. In this case we want theTrust to mirror the Will. Can attorney fees be reduced for a Trust preparation if the information is already outlined in a Will?
Thanks,
R
Dear R:
Thank you for your thoughtful question. The choice to file a Will in the County Probate Court is optional and the Will can be removed if and when changes are made. If your mother chooses to have a Trust manage her estate, the process could be simpler IF all of her assets are either titled to the trust or properly coordinated to allow for management during any period of incapacity and to make appropriate distribution after her passing. The retitling and coordinating of assets is a process commonly referred to as "funding" the trust and is very important to get the results you are seeking. I recommend your mother discussing the particulars with her attorney (or find another qualified attorney to assist if that relationship is not in tact). In our office we would suggest that the current Will be retrieved from the Probate Court and the new plan designed. The costs will vary from one law office to another. In our experience, it may be more cost effective to follow-up with the existing lawyer than starting with a new lawyer.
Sandy
Posted on: Jul 10, 2008
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MARY wrote on 10/09/08 4:25 PM
What steps does a beneficiary take to secure an inheritance from a trust of a loved one?ANSWER:
As a preliminary matter, the trustee's duty is to administer the trust in accordance with the terms of the trust. Such a trust provides instructions to the trustee to follow. A trust containing a share to be distributed to (or for the benefit of) a trust beneficiary is to be managed by a trustee until it is distributed. Sometimes, trust beneficiaries are anxious for distribution but the trustee must still manage the beneficiary's share and distribute only pursuant to the trust's terms and the trustmaker's intent. Further, the trustee may have the added responsibility of paying debts, expenses, taxes, and other obligations of the decedent or the trust estate before distribution can be made.
A trustee is a fiduciary who owes a high level of duty to the beneficiary. The beneficiary has a right to know the terms of the trust and the trustee generally has a duty to account to the beneficiary for the trustee's actions. Finally, if there is an unresolvable conflict between the trustee and a beneficiary either party may petition the probate court for help. So, if the trustee is unwilling to provide sufficient information to the beneficiary upon request, then the beneficiary should consider a probate court action as an option. Note that the proper probate court may be in the the county in which the decedent lived or the county of residence of the trustee or as otherwise specified in the trust. In my experience, these types of situations are often easily resolved. However, if the trustee is not willing to work with the beneficiary and discuss things openly, the beneficiary should consider seeking the advice of an experienced probate attorney. I hope this information helps.