Denver, CO asked in Estate Planning for Utah

Q: If a trust specifies a yearly distribution to beneficiaries until all money is gone,

legally speaking isn't the money in the trust still considered the trustor's held in trust after their death until all money is gone.

the trustor had specific burial wishes and noted that there would be "plenty of money" for those wishes. Can't the money in the trust be used to fulfill these wishes? Isn't this part of fully and adequately settling affairs of the trustor's estate?

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2 Lawyer Answers

Wesley Winsor

  • Estate Planning Lawyer
  • Saint George, UT
  • Licensed in Utah

A: Hello, Good Question

The Trustor/Grantor/person who funded the trust is separate and apart from the trust itself. Depending on the form of the trust whether revocable or irrevocable the Trustor can retain some or all of the rights to direct the disposition of the property while they are living. After they are dead, the disposition of the assets are governed by the trust.

Sometimes a trust will leave the successor trustee the discretion to direct where the assets go. Sometimes everything is outlined and the trustee really just possesses or liquidates property and hands it out.

"Legally speaking", no dead person can own property, a milisecond before they die, their property transfers to their estate or if trustee to their trust, then the rights of the trustee transfer to the successor trustee.

The terms of the trust are independent of the will or the estate. Most times they will work together. Any property that is titled in the name or position of trustee of the trust is in the name of the trust. Any property held in the decedent's name alone is part of the decedent's estate. The trustee is only bound by the terms of the trust, the personal representative is bound by the terms of the will or the by the laws of intestacy.

If the decedent gave written instructions they may not be honored unless they are included with the documents bestowing the fiduciary power (trust or will). If they just tell someone or write something down but don't include in their estate planning docs then they can be justifiably disregarded.

I am not sure if I am getting to the real issue here. Please clarify your question.

I Hope this helps.

Kenneth Prigmore

  • Estate Planning Lawyer
  • Spanish Fork, UT
  • Licensed in Utah

A: You stated, "the trustor had specific burial wishes". If those wishes were stated in the Trust, they must be followed. Even "settling the affairs of the estate" could reasonably be inferred to include the costs of burial. If the Trustor had specific wishes that were not stated in the Trust, whatever is stated in the Trust must control the disposition of the assets. Generally, Trusts are designed with some flexibility to allow the Trustee to deal with specific details as they see appropriate. The mere naming of a Trustee shows the desire of the Trust's creator to give some decision making powers to the Trustee. If a Trustee is instructed in a Trust to pay for the burial, but no language specifies how this is to be done, or how much is to be spent, the Trustee has the power to pay a reasonable amount for burial. If someone feels the Trustee is spending too much on burial, they can pursue the issue in probate court.

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