What Happens To A Family Trust In Probate?

What happens to a family trust in probate?   It’s not easy to understand it, as we don’t encounter this thing every day.   So for clarity, let’s define two terms – family trust and probate.

A family member can establish a family trust to benefit his family members, who are related by law, affinity or blood.  

Typically, it’s created as a tool stating the passing of the assets to future family generations, too.

The term family refers to the grantor, his/her spouse, grandparents and children, and so on. 

All members of the same family are the beneficiaries of a family trust, according to S.C. Code Ann. § 12-24-40.  

A probate, on the other hand, is a legal process that involves reviewing a will to determine its validity.  It also means the overall administration of a deceased person’s will or his estate if he doesn’t have a will.

Which are the most common conflicts?

But then, a trust can also be put under a probate due to disputes or conflicts that may include but not limited to the following –

As to who among the beneficiaries should inherit the property

Conflict over the property’s value or amount

Distributions violating the trust laws

Trustee’s way of handling the trust property like if he/she has sold/distributed it against the trust’s terms

Timing of the property transfer

For the family trust, it can also be common to have a conflict due to the close interests involved, which are creating conflicts between the beneficiaries.  

Take note that a trust dispute does not only involve a property but also bank account content along with other monetary amounts.

When family members can cancel the will?

Significant events can be reasons for cancelling a will and a few of them include the birth or death of an immediate family member or relative, acquiring large money sums and changes to marital status, to name some.   

A will can also be cancelled due to permanent or extended relocation to another country.

Generally, a will can be canceled if significant life changes may be or are affecting old provisions in the will.   Most of the times, a new will is created so that the document will be clear to avoid any disputes and proceedings in Problem Solving Courts in the future.

What probate attorney can do? 

A family trust in probate involves technical legal terms and issues, so you may want to seek the help of an experienced probate attorney if you need assistance and guidance in going through this difficult legal process.

He/she can file your paperwork and represent you during court meetings/proceedings.  With an experienced attorney, you’ll be able to navigate this entire process with proper guidance and make it less complicated than handling it without a lawyer.

Simple Steps for Keeping Family Members on Board

Family fights are uncontrollable especially over an inheritance. It is not one or two families that had disputes over it. For this reason, it pays off that family members communicate – openly and often.

Set rules and tell everyone about them.   Let them know that some decisions will need discussion in which they can provide an input or suggestion.  But if you’re an executor, tell them about decisions that you need to make and that you’d inform them about, too.

Bring in a third party to mediate for some objectivity if you know that some family dynamics might complicate the probate.  It can be someone with patience and detachment and is neutral that can help in resolving any family fights.

Don’t let the probate put you down and consume your life. While it’s a tedious, long and complicated process, it should not consume you. Instead, look after yourself in this emotional process. 

You should set realistic boundaries and a timeline as to when to focus on the probate issues and in your life.  

Remember, your life doesn’t revolve only around probate. You have a life to which to attend, haven’t you?  Thus, you must not let yourself be dragged down by the process.

The process of probate in family trust can be arduous and time-consuming. Generally, it takes between 10 and 18 months (uncontested proceeding).  The court will certify the executor, who’s appointed in the estate plan, or it will assign another administrator under specific circumstances.


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