This is the eighth part in a series of blog posts that compare wills and trusts in the following areas: 1. Cost, 2. Post-Death Process, 3. Getting Money to Minors, 4. Maintenance, 5. Family Situation, 6. Taxes, 7. Asset Protection, 8. Later Acquired Assets.
Later Acquired Assets 

I have had a few cases in my career where money or assets have come to light or even come into existence several years after the deceased’s death. In Utah, if a will has not been probated after 3 years, then it no longer can be, and the intestate statute prevails over the estate planning done by the decedent. Intestate means that assets are inherited according to state law.

Let me give you a scenario: A person died and it was discovered that the illness that killed them was caused by exposure to a pesticide. The family of the deceased person filed a wrongful death lawsuit, which takes a great deal of time to resolve. So 5 years after this is filed, there is a settlement that needs to be paid out. If the deceased person had a Trust at the time of their death, and it was properly funded, then there would have been no probate required, hooray! Right? 

Well kinda, this newly issued settlement would be issued in the name of the decedent, meaning that it wasn’t  “titled in the trust,” and it wasn’t possible to title it in the trust, as it didn’t exist until after the deceased’s death. BUT, in addition, no probate was filed within the three year required window, and now it’s been five years, so instead of this money being dictated by the deceased person’s trust (like all the other assets properly funded), it would instead be distributed based on the intestate law of the state AND that means it would also require a formal process (hearings) in Court called a “determination of heirs”. 

However, if at the time the person died, they had a will instead of a trust, and the will had been properly probated, then the terms of the will would dictate the distribution of later acquired assets, no matter when those assets are  discovered. This can be particularly important in situations where the deceased person left an unequal distribution or disinherited a family member. 

Winner for Later Acquired Assets: Wills