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My aunt died six months ago. She was married and without children. In hospice care she said she had left things behind for her brothers and sisters in her will. Also during this time, her surviving husband - and executor of her will - said he doesn't want anything to do with her side of the family after her death.

It has been six months since her death and no beneficiaries on her side of the family have been contacted about her will. A call to the King county supreme court showed no records of her will, so it was never filed with the court. They did show that their house was put into a trust in 2017, when they got her terminal cancer diagnosis.

I'm assuming that they planned their estate so as to avoid probate.

We believe it's possible the husband is simply choosing to not notify the beneficiaries of the will since there is bad blood between him and the aforementioned.

What would be the best course of action now? It has been six months with no communication from him or his estate lawyer, and no will has been filed with the court. Since it's not entering probate, is there any guarantee that he has to faithfully execute the conditions of the will at all or notify any of the beneficiaries? Without probate, can he simply choose to not execute the will?

  • Have you directly contacted the estate lawyer? Or did you only ask the court about the possible status of the will? – BlueDogRanch Aug 1 '18 at 2:32
  • I've only called up the court to ask if they have the will on file. We don't know the estate lawyer (husband refuses to give us his lawyer details), but even if we did, would he even share any information with us for confidentiality reasons? We also wouldn't want to contact the lawyer because the late husband might see that as us trying to go over his head if he were to find out. – fuzzybabybunny Aug 1 '18 at 3:09
  • Call the court again and ask who the attorney is for the trust. That lawyer is legally required to respond truthfully about the status of the estate and who the beneficiaries may be. It's your choice to do that, re: you cite the husbands possible response. – BlueDogRanch Aug 1 '18 at 4:10
  • Ok, thank you. I didn't know I could ask about the lawyer's identity. The lawyer has not contacted any of the beneficiaries, so does this mean even he doesn't have access to the will? And as I understand it, probate forces the executor to faithfully execute the will. If probate is avoided, what guarantee do beneficiaries have that the executor will execute the will as stated, especially if the will doesn't state any time limits for when certain things need to get done? – fuzzybabybunny Aug 1 '18 at 6:33
  • How can you be sure that it's not just the house which was put into the trust? If everything was put into the trust, and the husband is still around, he'd probably be the sole beneficiary of the trust, and therefore, the sole beneficiary of everything. What your aunt wrote and signed (when she and her husband formed the trust) trumps whatever she may or may not have said while in hospice care. – brhans Aug 1 '18 at 12:23
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What would be the best course of action now? It has been six months with no communication from him or his estate lawyer, and no will has been filed with the court. Since it's not entering probate, is there any guarantee that he has to faithfully execute the conditions of the will at all or notify any of the beneficiaries? Without probate, can he simply choose to not execute the will?

A will has no effect or validity until it is admitted to probate. You can't do anything with a will outside a probate proceeding.

Usually state law requires that a will that is in someone's possession be lodged with the court, whether or not they plan on opening up a probate estate, but this requirement is widely ignored.

Unlike a will, a trust can be administered without court supervision, without being admitted to probate, although usually, the trust is required to file a notice of its existence with the court if it has become irrevocable (a requirement that is also widely ignored). The trustee of a trust has a fiduciary duty to administer the trust in accordance with its terms and to keep the beneficiaries of the trust reasonably informed about it. Again, sometimes the notice to the beneficiaries is overlooked.

Also, it wouldn't be unusual for someone to inaccurately say that a will provided that a certain thing happen, when, in fact, that was a provision in a trust. People are sloppy in ordinary conversation about the distinctions between wills and trusts.

If a trust was drafted to avoid probate, the will is probably just a "pour over will" which states that if there is any property that is not in the trust as her death that it is hereby transferred to the trust. Normally, a person would not have both a trust designed to avoid probate and a will with substantive provisions at the same time.

If you suspect that you know who the trustee is, the first step would be to write a formal letter that you can prove was sent and received (e.g. via certified mail or FedEx), asking if there is a trust, and if there is one, if you are a beneficiary of that trust, and asking for the trust agreement (or at least the parts of it pertinent to you status as beneficiary).

If the person that you suspect is trustee is a trustee, he has a legal duty to let you know these things (which doesn't mean that he necessarily will do so).

If you fail to receive cooperation or a response after this initial inquiry, you may need to hire counsel to attempt to obtain this information through the courts.

  • Thanks! I did some digging. They have a revocable trust under both their names. The trust document is not available but a record of them transferring their house into the trust at cancer diagnosis IS (quit claim deed). There is no record of the revocable trust being turned into an irrevocable one - a revocable trust turns into an irrevocable one once the creator dies, but what if one of the creators is still alive? There is no record of which attorney set up the trust. Would it be common for the surviving husband to be the trustee of his own trust? Or is it usually an attorney or someone else? – fuzzybabybunny Aug 2 '18 at 19:56
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    Usually the trust is part revocable and part irrevocable at the first death, but trusts that stay fully revocable are not uncommon (if it is still fully revocable it was basically equivalent to an "all to husband" will and no one has any rights at this point). It would be common for the surviving husband to be either the sole trustee or one of more than one co-trustees. It could be someone else entirely but that would be unusual. The attorney name is often not listed publicly if there is no trust registration or court case. – ohwilleke Aug 2 '18 at 20:02
  • Hmmm... so at this point there is no way to determine the attorney who created the trust, who the trustee(s) are, nor the trust document itself, without going through a possible uncooperative husband or lawyer? If the husband says "no, you're not a beneficiary" but the beneficiary believes that's a lie, the court can force the trust documents to be revealed? If the trust is still fully revocable, what's stopping the surviving husband from altering the trust to remove all of the beneficiaries that his wife originally put down? – fuzzybabybunny Aug 2 '18 at 20:33
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    @fuzzybabybunny You ask the husband, and if you think he is lying you could bring court action. If the trust is still fully revocable, the surviving husband can alter the trust to remove all of the beneficiaries this his wife originally put down. – ohwilleke Aug 2 '18 at 20:40
  • Gotcha. So her will is pretty much without power because a) if it's a pour-over will (most likely), it wouldn't list beneficiaries anyway and b) creating a trust means they intended to avoid probate, and like you said, wills have no power outside of probate. So there probably isn't even a will that lists beneficiaries - there is only the trust document that has instructions on what to do after her death, but if the trust document does not have language requiring a trust split after death, the entire trust will be owned by the husband, who can amend it as he sees fit. Is this right? – fuzzybabybunny Aug 2 '18 at 21:09

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