Living Trusts and Probate Process
Question: Several years ago I had a will and living trust set up by a Los Angeles attorney who has since retired. As I understood it when the estate was set up, it would not have to go through probate. I subsequently added a codicil changing the trustee from a bank to my granddaughter. In the event of my death, does my trustee have to secure the services of an attorney to handle matters, or can my trustee just carry on as instructed in my will? Does the will or trust have to be filed somewhere?
Answer: It is difficult to answer your question specifically because all the facts needed for a detailed analysis are not in your letter, and you have used terms that are not precisely accurate, so I’m not sure what kind of will or trust you really have. But let me make a few general observations.
I am assuming your lawyer created a revocable living trust and what is called a “pour-over” will, which authorizes the transfer of, or “pours over,” any assets you neglected to transfer to your trust into your trust upon your death. (This is done through probate.) I am also assuming that you “amended” the trust to name your granddaughter as the “successor trustee,” since ordinarily you are the trustee of the living trust during your lifetime (unless you are unable to manage your financial affairs). A “codicil” is a legal “term of art” that refers to an amendment of your will, not an amendment of a living trust.
But your basic question is: Does your granddaughter have to hire an attorney after your death? And in good lawyerly fashion, the answer is “it depends.” If your estate is very simple, if all your assets have been transferred to the trust, and if the trust instructions are relatively straightforward, it may be possible for your granddaughter to do it herself, with a little assistance from self-help law books. For example, if all your assets are in a brokerage account that is held in the name of the trust, she may not need a lawyer to instruct the brokerage firm to execute the trust instructions, especially if they are simple--such as transferring all the assets to your daughter.
On the other hand, if you have assets spread around in different financial institutions, if you perhaps own land in different counties, and if some of your assets have not been properly transferred to the trust, your granddaughter is in for quite a headache if she tries to go this alone, without a lawyer’s help.
For example, if all the assets have not been placed in the trust and are not in joint tenancy, then those assets will be under the jurisdiction of the probate court, and your estate will go through probate. Your granddaughter can even try to go through that process without a lawyer’s help--it’s gotten simpler in the last few years--but it’s still not fun. A good reference book is “How to Probate an Estate,” by Julia Nissley.
Probate lawyers have to follow a statutory schedule of maximum fees that are based on the size of an estate. The fee of a lawyer hired to assist you in executing the instructions in a living trust is open to negotiation, although some lawyers also base their fees on the size of the estate.
The State Bar of California publishes a helpful, easy-to-understand pamphlet called “Do I Need Estate Planning?” It is available free of charge. Send a self-addressed, stamped, business-size envelope to State Bar Pamphlets, 555 Franklin St., San Francisco, Calif. 94102.
