revocable trust

When a Revocable Trust Doesn’t Leave Assets

Question:

My former husband, Mel, recently passed away. He and I have two sons together, one of whom is a drug addict. Mel created a last-minute revocable trust and a document that is called a will, but it does not leave assets to anybody. It just appoints me as the personal representative of his estate. All of his assets, including his residence are titled in his name.

Answer:

This is an unfortunate, but not unusual, situation. When Mel created the revocable trust he likely did so to avoid probate. The trust avoids probate when it is funded, meaning that the title to assets is transferred to the trustee of the trust.

Because assets are not in the trust, the result is that your late former husband died intestate, or without a will directing distribution of his assets. The will should be accepted by the probate court for the purpose of appointing you as the personal representative.

Then you will have the customary duties of locating and protecting assets, giving notice to creditors, filing tax returns and paying taxes and ultimately distributing the assets.

Because there is no connection between the estate and the trust, the trust will be ineffective to distribute assets. Instead, assets will be distributed to your former husband’s heirs – his two children. It is unfortunate to learn that your son is a drug addict. The distribution of assets without a will or trust means that each of your children will be entitled to their respective¬†shares without any protection whatsoever.

There are other means to protect your son, such as a conservatorship if he is incapacitated. You will need to consult a lawyer to get more information.

 

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