Marriage post Establishment of Will and Trust (Florida)

[MRG118]

What is the name of your state (only U.S. law)? Florida
My mother established a Will and Trust in 2011, distributing all her assets to me, and a small portion going to my cousin (am an an only child).

She was married in January 2016, a prenuptial agreement was signed by both parties in December 2015 stating that her Will and Trust were to be honored, and that he husband had no claim to her assets.

She passed away last month. Her husband is refusing to sign any documentation of any sort, and it appears his son is persuading him to contest the Will. From what I understand Florida law entitles a spouse to a share of the assets if a new Will is not signed after marriage. However, as I said, there was a pre-nuptial agreement.

Does this mean that everything needs to go through Probate, even though there is a Trust?

 

[HRZ]

I simply do not know if marriage and a valid prenup require that that a prior will be rewritten ....tHe major issues that a prenup might get tossed are found in " Castro " and that is not one of them ...but there might be other reasons the prenup gets tossed or SF gets entitled to his elective share .

THe executor or trustee would be smart to get some paid legal counsel on the specific pre nup, will, and general fact pattern . ( I pushed my MIL to contest her prenup...and she prevailed ...but it was no easy fast or inexpensive quest even though the flaw was crystal clear and she employed services of one of her states top guns in that legal area.)

 

[Dandy Don]

Hard to figure out why she wanted a will and a trust when it may have been easier to put everything in the trust. Too bad that she didn't put a clause in the will to disinherit anyone who contested it.

Probate will only be done to handle any assets that are named in the will only. The trust and any assets it contains, if they have been properly titled with the name of the trust, will be handled/managed privately by the trustee outside of court.

 

[MRG118]

tHe major issues that a prenup might get tossed are found in " Castro " and that is not one of them ...but there might be other reasons the prenup gets tossed or SF gets entitled to his elective share .

I'm not sure what this means? In Castro? What are the reasons a prenup would get tossed?

 

[MRG118]

Hard to figure out why she wanted a will and a trust when it may have been easier to put everything in the trust. Too bad that she didn't put a clause in the will to disinherit anyone who contested it.

Probate will only be done to handle any assets that are named in the will only. The trust and any assets it contains, if they have been properly titled with the name of the trust, will be handled/managed privately by the trustee outside of court.

Everything in the Will, is in the trust.

I am the Trustee and beneficiary of the trust. The accounts were set up in trust for me (but no beneficiary was designated with the financial institutions. I understand that would have bypassed probate). I am the only heir listed in either the will or the trust, other than the small sum going to my cousin.

 

[FlyingRon]

The will has no bearing whatsoever on things that are titled to the trust. Nothing is "in the trust" just by virtue of it being mentioned in the trust document. It has to be explicitly titled to the trust.

Generally, a will in parallel with a trust exists for things that either can't be placed in the trust or just didn't for some reason and end up still owned by the deceased.

 

[HRZ]

Sorry, the type check put in "Castro " the major fl case is "Casto "

Trustee needs solid legal input on the specific facts ...in general a spouse who is left out of a will has rights to elect against it ...but yours is not that simple, hopefully valid pre nup. Stuff in will is not yet in trust .

 

[quincy]

Sorry, the type check put in "Castro " the major fl case is "Casto "

Trustee needs solid legal input on the specific facts ...in general a spouse who is left out of a will has rights to elect against it ...but yours is not that simple, hopefully valid pre nup. Stuff in will is not yet in trust .

HRZ, please provide a cite or a link to the Florida case. Tossing out a single name means nothing.

Thanks.

 

[FlyingRon]

Presumably Casto v. Casto 508 So. 2d 330 (1987)

http://law.justia.com/cases/florida/supreme-court/1987/66325-0.html

 

[MRG118]

The will has no bearing whatsoever on things that are titled to the trust. Nothing is "in the trust" just by virtue of it being mentioned in the trust document. It has to be explicitly titled to the trust.

Generally, a will in parallel with a trust exists for things that either can't be placed in the trust or just didn't for some reason and end up still owned by the deceased.

All accounts are titled to the trust with the financial institution. The financial institutions are ready to just sign everything over into my name. My lawyer says otherwise, that it must go through probate.

 

[LdiJ]

All accounts are titled to the trust with the financial institution. The financial institutions are ready to just sign everything over into my name. My lawyer says otherwise, that it must go through probate.

Then talk to another lawyer. Anything titled to a trust does NOT have to go through probate. Other things might need to do so, but not things titled to a trust.

However, lets be clear here. If the accounts are entitled to the trust that means that the accounts are in the trust's name, with the trust's EIN number. If that is not the case say so. However, the fact that the financial institutions are ready to just sign everything over into your name does seem to indicate its that way.

 

[MRG118]

Then talk to another lawyer. Anything titled to a trust does NOT have to go through probate. Other things might need to do so, but not things titled to a trust.

However, lets be clear here. If the accounts are entitled to the trust that means that the accounts are in the trust's name, with the trust's EIN number. If that is not the case say so. However, the fact that the financial institutions are ready to just sign everything over into your name does seem to indicate its that way.

EIN number? Is that the same as my Social Security number? How would I verify that? The individual accounts within the trust have my mothers SS number.

The account statements specifically say

"(my mothers name) Trustee
(m mothers name) Living Trust"

 

[LdiJ]

EIN number? Is that the same as my Social Security number? How would I verify that?

The account statements specifically say

"(my mothers name) Trustee
My mothers name) Living Trust"

A person has an SSN
An entity (trust, business etc) has an EIN

What controls more than anything is the SSN or EIN that is attached to the account. If your mother's SSN is attached to the account then the lawyer may be correct. If the trust's EIN number is attached to the account instead, then its fully titled to the trust.

 

[MRG118]

A person has an SSN
An entity (trust, business etc) has an EIN

What controls more than anything is the SSN or EIN that is attached to the account. If your mother's SSN is attached to the account then the lawyer may be correct. If the trust's EIN number is attached to the account instead, then its fully titled to the trust.

I doubt an EIN number was every established.

 

[LdiJ]

I doubt an EIN number was every established.

Maybe not, but it only takes 5 minutes online to establish one.