Living Trusts, Probate Court Duties in Safeguarding Estates Reviewed

The letter from Robert R. Shively (“Lawyer Scandal Reflects Poorly on State Bar, Judges,” Dec. 13) raises a question that calls for a response from the Probate Court.

The question was: “Assuming the allegations are correct, how did Mr. (James D.) Gunderson persuade Superior Court probate judges to approve such wills for probate?” While judicial ethics prevent me from commenting on the merits of the cases involving allegations against Mr. Gunderson, I strongly believe the public is entitled to information about the Probate Court’s procedures.

It should be noted that inter vivos or “living trusts” are private documents that are not filed with the Probate Court. Under a living trust, the trustee distributes the estate without any court supervision. The only way in which the court can acquire jurisdiction over a living trust is if one of the beneficiaries or other interested parties files a petition with the court questioning the conduct of the trustee.

In the case of the Merrill A. Miller estate, the estate had been placed in a living trust and there was no court involvement until recently when one of the heirs filed a petition with the court seeking to avoid the “no contest” clause of the trust and to bring the issue of alleged undue influence before the court.

With respect to wills, there is a different problem. When a will is submitted to the court to be probated, the Probate Court is not informed as to who drafted the will. The drafter of the will may or may not be an attorney and often is not the same attorney who is handling the probate.

With approximately 5,000 attorneys in Orange County, it is often not apparent that a person named in a will is an attorney. The present probate system relies on notice being given to all of the heirs that a will is being probated. If an heir has an objection, the heir can file a will contest challenging all or part of the provisions of the will.

The recent problems that have been revealed indicate inadequacies in the existing system.

There is a need for a comprehensive review of the Probate Code, the Probate Court Rules and the Attorney Rules of Ethics to determine what changes are needed to protect the public. I pledge that the Probate Court will do its part to effect the needed changes.

TULLY H. SEYMOUR

Supervising Judge, Probate Department

County of Orange