• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Trust, Will & Probate

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.



TZ201

Junior Member
Trying again - my question didn't appear

Missouri
My father died two weeks ago. He had a Living Trust and a Will. All of his assets (cash, mutual funds, ira - no real estate) are in the trust. In his will he assigned all of his furniture and personal effects to the trust. Does this mean there is nothing to probate? If not, is there still something I need to file in Missouri in the county where he lived?
 

FlyingRon

Senior Member
Missouri
My father died two weeks ago. He had a Living Trust and a Will. All of his assets (cash, mutual funds, ira - no real estate) are in the trust. In his will he assigned all of his furniture and personal effects to the trust. Does this mean there is nothing to probate? If not, is there still something I need to file in Missouri in the county where he lived?
For estates consisting only of personal effects, etc... there is a small estate procedure in Missouri law that bypasses the full up probate.
 

curb1

Senior Member
If everything is within the trust, there shouldn't be anything to probate.

You need to check to see if there were beneficiaries listed on the IRAs and mutual funds. I'm guessing that from what you said, he had the trust listed as a beneficiary which isn't always advisable.
 

FlyingRon

Senior Member
If everything is within the trust, there shouldn't be anything to probate.
Everything is NOT in the trust. Despite the fact the assigned the personal effects to the trust in the will, they are in his estate at the time of death. He needs to go through at least the small estate procedure to be able to distribute them according to the will.
 

curb1

Senior Member
FlyingRon,

Is Missouri different from most states? It is my understanding that the pour-over will enables the bypass of probate.

"More recently, however, a number of jurisdictions have recognized the validity of a pour-over will. In the jurisdictions in the U.S. which allows a pour-over will, testators do not usually put all of their assets into trusts for the reasons of liquidity, convenience, or simply because they did not get around to do so before they died. A pour-over clause in a will gives probate property to a trustee of the testator's separate trust and must be validated either under incorporation by reference by identifying the previously existing trust which the property will be poured into, or under the doctrine of acts of independent significance by referring to some act that has significance apart from disposing of probate assets, namely, the revocable living trust (inter vivos trust). The testator's property is subject to probate until such time as the pour-over clause is applied, and the estate assets "pour" into the trust. Although the trust instrument must be in existence at the time when the will with the pour-over clause is executed, the trust need not be funded inter vivos. The pour-over clause protects property not previously placed in a trust by pouring it into the previously established trust through the vehicle of the will."

http://en.wikipedia.org/wiki/Pour-over_will
 

FlyingRon

Senior Member
Missouri does do pour-over wills but you are MISTAKEN as to what they are. It does NOT mean that everything in the will magically becomes part of the trust without going through the probate system (either through the full blown or small estate procedures). It directs the assets to be transferred by the probate procedure (or its substitute) into the trust. And that IS the way it works in most states.
 

anteater

Senior Member
Not that I would ever advocate not doing things by the book... :D

But we're talking furniture and personal belongings here.

Unless there is a possibility of some contentiousness...
 

curb1

Senior Member
Exactly. The OP said, "In his will he assigned all of his furniture and personal effects to the trust. Does this mean there is nothing to probate?"

Yes, there is nothing to probate unless there is a dispute among the beneficiaries. They can just split up the personal effects and furniture to everyone's satisfaction and keep the court out of it.
 

FlyingRon

Senior Member
Exactly. The OP said, "In his will he assigned all of his furniture and personal effects to the trust. Does this mean there is nothing to probate?"

Yes, there is nothing to probate unless there is a dispute among the beneficiaries. They can just split up the personal effects and furniture to everyone's satisfaction and keep the court out of it.
Technically the above is wrong. The fact that there is no dispute (and hopefully no outstanding debts) in the estate means that if they do break the law and pour over things into the trust without proper authorization, nobody is likely to complain doesn't make it the fact that it's not the right procedure. The small estate procedure is done by the probate court without a full up probate procedure.
 

curb1

Senior Member
FlyingRon,

You seem to indicate that it is illegal to not use probate. Is that what you are implying? Are you sure?

In this case, just distribute the "furniture and personal effects", and be done with it (as long as everyone is satisfied).
 
Last edited:

FlyingRon

Senior Member
FlyingRon,

You seem to indicate that it is illegal to not use probate. Is that what you are implying? Are you sure?

In this case, just distribute the "furniture and personal effects", and be done with it (as long as everyone is satisfied).
I am implying that you can not distribute assets from an estate without going through one of the approved processes.
The small estate process isn't "PROBATE" but it isn't just some relative doling out things without authorization from the court.
Be it intestate or with a will, the proper way would be to get the appropriate approval.
 

curb1

Senior Member
I would suggest that the OP read the trust documents carefully. The "furniture and personal effects" could easily be part of the trust.
 

FlyingRon

Senior Member
I would suggest that the OP read the trust documents carefully. The "furniture and personal effects" could easily be part of the trust.
So what if it does? That doesn't make the decedents personal effects owned by the trust. That's what the pour-over will is for.
 

TrustUser

Senior Member
ron,

we have had this discussion in the past, so i am not gonna get in a big argument again.

i will simply say that personal assets can be owned by trust.

however, i cant see what the big hoopla is over this ?

since when do courts ever get involved over who gets the sofa, and who gets the refrigerator ?

the beneficiaries would have to be dumber than dumb to actually need to use a probate court to decide such issues. the alternative of them agreeing with each other is much, much better.

it does not seem like much of an issue here, except for posters on this site to discuss legalities, and how many angels reside on the point of a needle.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top