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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33801
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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My wife had been a named beneficiary of a trust from her

Customer Question

My wife had been a named beneficiary of a trust from her aunt leaving her 1 quarter of the trust and stating her name or her decendants per stirpes. My wife died before the trust terminated,before any distribution or any funds given out. With the death of my wife and the per stirpes language in the trust document do my children need to open up a probate estate to take from the trust.the trust is administered in illinois. Also would a estate need to be open to get a trust accounting just to weigh their options and expense. Thanks. JF
Submitted: 11 months ago.
Category: Estate Law
Expert:  Barrister replied 11 months ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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With the death of my wife and the per stirpes language in the trust document do my children need to open up a probate estate to take from the trust.

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No, a trust is a private legal entity and is controlled by the trust documents itself. So if the trust states that wife's descendants are to automatically receive any distribution she would have received if she had not passed, then the trustee would have a legal duty to simply substitute the children as the beneficiaries and anything that wife would have received would just be divided equally between any children.

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Also would a estate need to be open to get a trust accounting just to weigh their options and expense.

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Here also, I would opine no, because when wife passed, her children then become legal beneficiaries to the trust since they were "contingent beneficiaries" while wife was living. As current beneficiaries, they have a legal right to request in writing that the trustee provide them with a copy of any accounting as well as an inventory of all assets in the trust.

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If the trustee refused to provide this information, then they would have to file suit against the trustee under a breach of contract and breach of fiduciary duty suit and then file a "motion to compel accounting and inventory" with the court so the judge could order the trustee to provide that information.

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thanks

Barrister

Customer: replied 11 months ago.
Thank you. Is there any illinois caselaw stating this which I can send the trustee since he is also a lawyer and has not to date answered my childrens correspondence
Expert:  Barrister replied 11 months ago.

Is there any Illinois case law stating this which I can send the trustee since he is also a lawyer and has not to date answered my children's correspondence.

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I am sure that there is an abundance of case law where a judge orders a trustee to provide information to a beneficiary, but in depth legal research is beyond the scope of the services I can provide here simply due to the amount of time it takes to research, read, and filter applicable cases..

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But a certified letter sent from an attorney requesting the inventory and accounting would likely have much more impact than researching a bunch of case law and sending them to the trustee..

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thanks

Barrister

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