Dear Jonathan: My mother, who was a widow, passed away earlier this year. In going through her papers, I found a living trust she had prepared in 2014 leaving her entire estate to me. Although I was somewhat surprised that she did not provide anything to my three siblings, it wasn’t a total shock because she wasn’t on the best of terms with them; they are all financially well off and I have always been the “go to” person when she needed help with anything. My siblings are not amused, however, and they have threatened to take me to court. The other thing I learned in going through my mother’s papers is that her home and her investments, which are substantial in nature, are all still titled in her name and my father’s name, who passed away a few years back. My question is how do I get those assets transferred to the trust so that they then can be transferred to me?

Jonathan Says: First of all, probate is required any time a person dies leaving assets titled in his or her name alone. Consequently, your mother’s estate will need to be probated because, as you indicated, her home and investments were jointly titled between your father and her, which, because he is deceased, means that those assets were titled in your mother’s name alone. Where those assets will be distributed upon the completion of probate will depend upon whether your mother left a last will and testament or not, and if she left a will, who she named as the beneficiary(ies) of her assets upon the completion of probate.

If your mother left a will and named her trust as the beneficiary of her estate, then upon the completion of probate, all assets that were subject to probate will be distributed to the trust by order of the probate court, and once that takes place, the trust will be the owner of those assets. How and when those assets are distributed to you will be controlled by the trust agreement.

If, on the other hand, your mother left a will, but did not name her trust as the beneficiary, then upon the completion of probate, those assets subject to probate will never end up in the trust and instead will be distributed to the beneficiary or beneficiaries named in the will.

If your mother did not leave a will, then she will be deemed to have died intestate, and her assets that were subject to probate will pass to the heirs who are entitled to receive her estate under the laws of the state in which she lived at the time of her death, which in most instances would be her surviving children. In other words, you and your siblings would share equally in your mother’s estate as opposed to your receiving everything.

You didn’t indicate whether your mother has any other assets besides the house and investments, but the only assets that will be controlled by your mother’s trust are assets that were already owned by the trust at the time of her death, assets that automatically pass to your mother’s trust at her death as a result of the trust being named as the beneficiary of those assets, such as the proceeds of a life insurance policy, and those assets that were subject to probate that will pass to the trust upon the completion of probate. If your mother did not retitle any of her assets to her trust prior to death and did not name the trust as the beneficiary of any of her assets, or name the trust as the beneficiary of her estate in her will, then the trust will be unfunded and ineffective, and as a result you will receive nothing from the trust because it has no assets to distribute to you.

I suggest that you meet with the estate planning attorney who prepared her trust to determine whether she left a last will and testament, and whether or not her trust was funded with other assets at the time of her death or will receive any assets as a result of her death. At the same time, this attorney can review with you what else needs to be done regarding your mother’s estate going forward. Good luck.

Jonathan J. David is a shareholder in the law firm of  Foster, Swift, Collins & Smith, PC, 1700 East Beltline, N.E., Grand Rapids, Michigan 49525.

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