You still need a will even if you have a trust

Q: Why does a person need a will if he has created a trust?

A: A properly established and funded trust should allow a settlor’s estate to avoid probate. However, like any good plan, you should have a backup to protect against the unexpected. In a trust estate plan, that backup is a will.

A last will and testament that supplements a revocable living trust is known as a pour-over will. In the event the settlor fails to fund something into the trust and it is a probate asset, the pour-over will make sure it ends up there.

If a settlor dies without a will, he has died intestate regardless of the existence of the trust. Even though the settlor created a trust, any probate assets he leaves will transfer according to the intestate statutes provided by the folks down in Indianapolis. Those intestate instructions will not include the trust as an heir. Since the trust won’t be involved in determining who gets the decedent’s probate assets, it is possible they won’t end up in the hands that the settlor designated.

Q: After the death of a parent, how long does the family have to open the estate?

A: There really isn’t a time limit on opening an estate. I’ve seen estates that have been opened years after the death of a loved one. However, I don’t recommend waiting that long.

First off, you only have three years to probate a will. If you fail to probate the will within three years of the death the decedent, it is extremely difficult to get it admitted into court. It’s not impossible but it is a difficult task.

In addition, there are other deadlines that need to be addressed. For example, the inheritance tax return needs to be filed within nine months of the date of death and the inheritance tax needs to be paid within 12 months.

Although you don’t need to run down to the courthouse the day after the funeral, I recommend not waiting too long. I tell my clients that I shouldn’t be the first phone call they make but I shouldn’t be the last, either.

Thanks for the questions.

Opinions are solely the writer's. Christopher W. Yugo is a Crown Point attorney. Address questions to Yugo in care of The Times, 601 W. 45th Ave., Munster, IN, 46321 or to chrisyugolaw@gmail.com. Yugo's information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant or estate-planning specialist.