Legal Question in Wills and Trusts in California

when do you know your attorney is not for your interests

Father was placed in CA nursing Fac. made contact and went after him to bring him to SD. He made will in CA. Moved all assets to SD excpt safety box/chk acct in CA. Lived and was register voter in SD a year and seven months. Upon death took will to ATT. Had living trust/will leaving everything to myself/illigitimate daughter. dod 12/03/01. Att said had to be probated because trust wasnt filed. CA att said it was. Att said can't finish informal prob. without safety box contents. CA att. said nt necess. due to, if $$$$ were in CA would have to file diff ancillary? Why is this being held up. Father said nothing would stand in way and for me not to be stupid. Now I feel I am.

Asked on 4/28/02, 3:39 pm

1 Answer from Attorneys

Victor Hobbs Victor E. Hobbs

Re: when do you know your attorney is not for your interests

Trust are not filed in California. Prior to the trustor's (person that puts the money and property in Trust) death they are supposed to be funded (deed property over to the trust so the trust owns the property. For you property may be characterized as stuff i. e. deeds to real property, cars, boats, planes, works of art, stock certificates, bonds, etc. The trustor normally names themselves as the trustee (person that manages the Trust). Then in anticipation of their death they name a successor trustee (the person or persons that manage the trust after the original trustee's death). The key here is to put all the stuff into the Trust. If the estate outside the Trust is less than $100,000.00 with no real property in it worth more than $20,000.00. Then there's no need for a probate. Probates cost a lot of money. Attorney's do them because they get a sizeable fee. The checking and saving account may be closed and the money acquired without a probate as long as the money in the account is below $60,000.00 maybe $100,000.00). However the safe deposit box is different (assuming your Dad didn't transfer the safe deposit box into the Trust). Normally the box is inspected, and if the contents are below $5,000.00, the contents are abandoned. $5,000.00 is considered to be the cost of a minimum estate probate. The bank will insist on the probate to recover the contents of the box unless it was registered with the bank as the safe deposit box of the Trust. So in addition to transferring all the Trust property to the Trust beneficiaries (which can be done almost immediately), there needs to be a decision to probate the Will. This decision is determined by the dollar value of the estate that's not been funded (transferred) to the Trust. With a Trust, the Will is normally a 'pour over Will.' This means that the money being transferred by probating the Will will go into the Trust. And be distributed in accordance with the terms of the distribution of the property in the Trust to the beneficiaries.

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Answered on 4/28/02, 4:31 pm

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