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Estate planning: Unfunded trusts
Estate planning

Estate planning: Unfunded trusts

Q: My parents had a trust but I don't think that they put anything in it. Now that they are gone, is there anything that we need to do with it?

A: This is classic estate planning mistake: failing to fund the trust.

Those of you who have trusts know that the trust should be funded if you want it to work correctly. Chances are pretty good that your attorney sent you out the door with a set of instructions and some pretty strong reminders that the trust needs to be funded if it is going to work correctly.

In your parents' case, if the assets aren't in the trust, you will need to review each one of them to determine how they were owned and to whom they will transfer. Unfortunately, there isn't one simple answer. Ownership of the asset will need to be determined before you know where the asset will go.

For example, if the asset is jointly owned, it will belong to the surviving joint owner or owners. If the asset has a beneficiary designation, it will belong to the beneficiary. If the asset is in the decedent's name alone without a beneficiary designation it gets a bit tricky. An asset like that is a probate asset and has to transfer as such.

What that means is probate assets will transfer according to the terms of the will or, if there isn't a will, the intestate statutes. Since your parents have a trust, I'm guessing that they had pour over wills. If so, the pour over wills should transfer the assets into the trust, so all is not lost. If the assets end up in the trust, the trust will control them.

However, if your parents didn't have pour over wills, then it's unlikely that the trust would ever come into play. Unfortunately your parents may have gone through the expense of creating a trust and it won't provide them with the benefits that trusts offer.

I guess ultimately what needs to be done is you need to determine what the facts are and then proceed accordingly. Until you know answers to the questions of ownership and provisions of the will, you are only guessing.

Finally, even if the trust isn't used, I would keep it around just in case. Stick it in a file and preserve it. Perhaps at some point you will discover that your parents at least partially funded it. If that is the case, you don't want to have to scramble to track down a copy of the trust.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chris’ 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.


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