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Do I need an attorney to help settle my mother/father's trust?

People create revocable living trusts in Florida in order to avoid the (mostly) cumbersome probate process. But in avoiding probate, does this mean that the successor Trustee avoids all attorneys? The answer depends on a number of factors.  The reality is that "settling" a trust may not be as easy as you may think, but it may not be that difficult either.

One of the first questions on whether an attorney is ended to settle a trust is how complicated are things?

  • Are there many beneficiaries?
  • Are there a lot of assets?
  • Is a charity a beneficiary?
  • Did the decedent die with creditors?
  • Are there disgruntled (or potentially disgruntled) heirs?
  • What is the trustee's capacity to handle financial and legal matters?

These are some of the most important questions on the need for the successor trustee to hire an attorney.  Basically, the more complicated matters are, the greater likelihood that the trustee should hire counsel to help them settle a trust.  One of the most important reasons is that the trustee has likely never done this before, and they do not know what they do not know. The trustee, importantly, is a fiduciary with a great deal of legal responsibility. The trustee's duties include, but are not limited to:

  • Paying the decedent's creditors
  • Paying/filing the decedent's last tax return
  • Depositing the will with the probate court
  • Filing a notice of trust with the local court
  • Providing an accounting to all beneficiaries
  • Acting as an impartial person, acting on in the trust's benefit
  • Acting as a reasonably prudent person would in finalizing matters

In simple situations with a family that all gets along, settling a trust is not necessarily difficult for those who are capable of making sound financial decisions. If this is going to be too difficult for a family member or if the successor trustee is receiving lots of grief from other trust beneficiaries, it would be advisable to hire an attorney. The attorney would be paid from the trust estate, importantly, as this assists the successor trustee.

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D. Rep DeLoach III
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