Probate and Trust Administration During a Difficult Time

Thoughtful legal support designed to protect your interests and honor your loved one’s wishes.

What Is Probate?

Probate is a process in which a deceased's will (where there is one) is submitted to the probate court and the assets and property are administered following his/her death.

The process of “probating” (or “administering”) the estate of a deceased generally includes collecting all assets of the estate, inventorying and appraising those assets, assembling and either paying or negotiating the deceased’s appropriate debts, determining, preparing, and filing appropriate income and estate taxes and real estate filings, and finally distributing any remaining assets in accordance with the will or the laws of intestacy (if there is no will) to beneficiaries and closing the estate.

Understanding Heirs’ Rights and Executor Responsibilities

It is important to understand each heir’s rights in the estate and the proper way for the estate representative to file, give notice to interested persons, and obtain authorization to act on behalf of the estate. When a client takes on the responsibility of serving as an executor or trustee following the death of a family member or friend, the task can seem overwhelming.

Comprehensive Support for Estate Representatives

We prepare and file forms, give required notice, obtain property appraisals, draft inventories and accounts, ensure compliance with tax filings, assist with selling and disposing of estate property, and guide the representative in settlement and approval of final accountings for the estate. We have access to experts in art, furnishings, antiques, and real estate values; realtors; tax accountants; and other professionals needed to get the work done correctly.

Simplifying a Complex Legal Process

To the novice, probate laws can be complicated and are a trap for the unwary and may cause many problems for those handling a probate on their own or being guided by an attorney without experience in this area. We work to lift this burden from the client to the greatest extent possible. We help simplify this complicated process for you by working with you closely every step of the way to ensure that all the deceased’s assets are distributed correctly and as promptly as possible.

Post-Death Planning and Tax-Saving Strategies

We also advise on techniques that can be used after an individual has died to reduce taxes or otherwise adjust a plan where appropriate. For example, the deceased sometimes forgets to designate a beneficiary to his/her retirement account, and in doing so, risks losing the opportunity to “roll over” the retirement benefits to his/her children. We have helped beneficiaries work around this problem so that they do get the benefit of the rollover and save taxes.

Experienced Probate Guidance You Can Trust

Estate administration is a complex and detailed process. We are experienced and proficient in handling estate matters. We handle probates in all Southern California courts (and some in Northern California). Furthermore, we invite and listen to your questions, and we explain each step to ensure that you understand and are comfortable with how the administration is proceeding. Please contact us by phone or email with your questions.

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What Is Trust Administration?

Trust administration is the process where assets held in a trust are administered following the death or incapacity of the “settlor(s)” (aka trustor(s)/grantor(s)) who set up the trust in the first place. The most common type of trust that we come across is the “living” trust, which is established by a person or married couple during their lifetime(s) to avoid probate (and sometimes to avoid taxes). The process can take anywhere from a few weeks to a few years or many years, depending on the size of the trust and the terms of the trust. The process can also include advice on the handling of non-trust assets such as life insurance, retirement plans, etc.

Maintenance of a Living Trust

While the settlor(s) are still alive, there is little or nothing to do with the trust—apart from keeping it updated or amended in case of changed circumstances.

When a Trust Becomes Irrevocable

But when a single settlor dies (or, in the case of a couple, when the second spouse dies), the trust becomes “irrevocable,” and the successor trustee can find him/herself thrown into the deep end. California law requires that even the simplest of trusts require certain actions to be taken upon the death of the settlor. Even if there are no challenges or disputes over an estate's assets or property, if any property has been left in a trust, trust administration for even a simple trust may involve many issues, including potentially complex matters of asset management, payment of taxes on trust income, and proper accounting of the trust assets. To help avoid a potential breach of fiduciary duty claim, the trustee should have experienced legal counsel.

Trust Administration Upon Incapacity

Note: It is also important to note that the trust administration process can kick in when the settlor becomes incapacitated. Recent case law in California has held that a successor trustee of a trust where the settlor becomes incapacitated has responsibilities towards those beneficiaries who will receive the trust estate upon the death of the settlor(s).

Responsibilities and Fiduciary Duties of Trustees

Many times, the successor trustee(s) is/are in a difficult situation—they may or may not be aware that they were named as successor trustee and now are faced with the task of managing a trust and dealing with the beneficiaries (often children/siblings). Even more importantly, they may also not be aware that, as trustees, they have a “fiduciary” duty to those beneficiaries to properly manage investments and the operation of a trust and to make appropriate disbursements. Breaching this “fiduciary” duty (for example, by “self-dealing”—or making poor investment decisions) results in personal liability of the trustee. There are also tax reporting obligations.

Legal Guidance for Trustees

So, if you are a trustee, it is important to consult with an experienced attorney such as the Law Offices of Patrick McNally to avoid potential liability for improper administration or a failure to uphold fiduciary obligations. In representing you as trustee, we will advise you of your obligations, including notifying beneficiaries, gathering and inventorying assets, funding sub-trusts if required, and preparing tax returns. We will assist you with accounting and inventory, prepare required reports, assist in handling tax returns, and give you necessary advice and counsel through the administration process. Our primary goal is to help you carry out your duties and protect you against liability for any acts you take (or fail to take) as trustee.

We also represent beneficiaries seeking to protect their own financial interests.

Sensitive Guidance During Difficult Times

Typical trusts administered by us include not only “living trusts” but also irrevocable life insurance trusts, special needs trusts, gifting trusts for the benefit of children and grandchildren (the latter are also called "generation skipping" trusts), and "credit shelter" (also called "A/B" trusts). Throughout our representation of executors, trustees, and other fiduciaries, we understand how privileged we are to handle a family's most sensitive personal and financial matters. We know that we are often doing so at a very painful and sometimes profound time for our clients. This sensitivity in working with clients is a hallmark of our practice.

Sensitive Guidance During Difficult Times

At the Law Offices of Patrick McNally, we provide a full range of cost-effective trust administration services to trustees designed to help them carry out their fiduciary duties and legal obligations. We can handle all aspects of the trust administration process or provide services to a trustee on an as-needed basis. Clients have the assurance that all affairs of the trust are being managed in an efficient, orderly, and conscientious manner.