Probate, Living Trusts and Attorneys

If you’ve set up a living trust. Great job. You’ve done a great thing for your family. But don’t leave that great thing unfinished and turn it into a not great thing. What do I mean? Probate.

Your estate will go through probate, even if you have a living trust, if you haven’t transferred your assets to your trust.

Our firm handles a lot of trust administration cases. In most cases, the children of a deceased parent hire our firm to administer their parent’s trust. Sometimes, the parent has failed to transfer assets to the trust, which could lead to probate, big attorney fees and a long court process. But if the parent had some form of writing showing intent to include the assets in the trust, the family could avoid probate.

Usually intent is shown with a schedule attached to the trust or by provisions in the body of the trust identifying the assets. With written evidence of intent, quite often a California judge will issue an order transferring the assets to the trust, and the family avoids probate.

Unfortunately, we’ve seen several cases when there was written evidence, but the attorney ignored it so he could take the case through probate. Here’s the dirty little secret – attorneys make a lot more money doing a probate than administering a trust. Before you blindly follow an attorney’s advice that probate is required, make sure there is no writing showing your parent’s intent to transfer assets to the trust. If there is written evidence, you shouldn’t have to take the estate through probate.

The best approach is to not take the chance. Make sure your assets are in your trust, and to the extent you can, make sure your parent’s have transferred their assets to their trust.