Trusts/Estates Administration and Probate Court Disputes*
Although California law presumes that most trusts will be managed without the need for court intervention, that law also imposes substantial obligations and rights with which most people have no experience. For example, the law imposes on trustees a “fiduciary duty” towards all the beneficiaries, which is the highest duty imposed by the civil law and which requires the trustee to act for the sole benefit of the beneficiaries regardless of the trustee’s personal interests. Beneficiaries have rights defined by the trust and by law, but they do not control the trust – the trustee does, subject to fiduciary and statutory duties. In many cases, family relationships and the emotions that arise when a loved one passes away further complicate administering a trust in accordance with the written documents and applicable law. Although litigation may not be necessary, legal questions and issues often arise in trust administration for which a trusts and estates lawyer may be helpful for any of the parties involved.
Many estate plans based upon a trust also include a “pour over” will to make certain that any assets omitted from a trust go to that trust upon the death of the trustor/settlor. Other estate plans have only a will, by which the testator provides for distribution of his or her assets upon death. Unlike a trust that is intended to avoid court, if possible, a will generally must be probated in court if assets are to be transferred (subject to some exceptions set forth in California’s statutes). In probate administration, an interested party files a petition, after which the court formally appoints a personal representative, who, like a trustee, operates under a fiduciary duty. The personal representative proceeds to manage the estate, including by gathering and inventorying the estate’s assets, identifying and paying appropriate creditors, providing for payment of any taxes, identifying who takes any remainder of the estate, and then distributing the remainder after making a final report to the court of the probate administration.
Jim Bush is an attorney for wills and trusts litigation and can advise and represent any of the parties in a trust or estate administration, including the fiduciaries (a trustee or a personal representative), beneficiaries, devisees, heirs, creditors, and other interested parties. If you already are a trustee or a personal representative, are considering whether to accept appointment as a trustee or personal representative, or are a beneficiary/devisee, creditor, or other interested party, you may have questions about your rights and/or responsibilities in connection with trust or estate administration that can best be addressed by an attorney. Also, it sometimes happens that a matter that begins as a simple trust administration or probate administration turns into more complicated trust litigation, a will contest, or a contested probate. Unlike estate and trust lawyers who primarily draft estate planning documents, Jim’s practice focuses on the litigation of trusts, estates, and probate matters. To see if he can put his decades of litigation experience to work for you, contact him by phone or e-mail to set up a no-charge conference.
*The law in this area frequently evolves. This discussion is meant only to set out current general principles, which are subject to exceptions as well as to change by statute and by case law. You should not rely on this discussion in addressing your legal obligations and rights or your legal questions but should instead consult an attorney.
