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When a person dies with a will and trust established does it have to go to probate

Modesto, CA |

2 of the three heirs are asking for a special administrator but the will and trust states the third child is the trustee and executor

Attorney Answers 4


  1. Generally the will names the executor and that person is granted the power to serve as such once the will is probated. If this is being challanged then the executor needs to retain an estates attorney to assist in this process.

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  2. It all depends. Usually, if the will and trust were drafted together, then the will is a "pour-over" and it is usually lodged with the court, but no probate is necessarily opened.... unless there are questions as to whether all the decedents' assets were properly titled in the Trust; or whether there are questions as to undue influence when the estate planning documents were created. Finally, if there is a question whether the named executor/trustee is capable of managing the estate/trust, sometimes another beneficiary may want a special administrator appointed.

    You should set up time to meet with a local probate practitioner, with the estate planning documents in hand, and a family tree identifying all named beneficiaries, etc., to assist the attorney in understanding the family dynamics and distribution plan.

    Good luck.


  3. More clarification is needed to properly answer your question and I would highly recommend an immediate consultation with an attorney to receive proper legal advice.

    You said that 2 of 3 heirs were asking for a "special administrator" but you don't say why they are making that request or what they want a special administrator to do for them. A special administrator is a legal term that usually refers to having a court appoint a person to take certain, specific actions. But if there is a trustee/executor appointed, what would a special administrator do for them, that the trustee or executor could not do?

    If I am understanding your question correctly, I think you are referring to a situation where there were two separate documents - a will document, and separate trust document.

    If you are referring to a situation where there is just one document - a will which also has terms that leave funds in trust created by the will itself, the answer is that the will will most likely have to be probated, but there should still be no need for a special administrator unless for example there is some urgent action that must be taken on behalf of the estate immediately and the action cannot wait for the regular probate of the will proceeding.

    The rest of my comments deal with the situation where there was a separate trust and a separate will.document. If the situation is that there was a separate will, and a separate trust, as two distinct documents, the will does need to be "lodged," but may not need to be probated.

    If the trust has been properly maintained, meaning that all assets were funded (titled) to the trust, the trustee should immediately begin collecting, preserving and managing the trust assets until the trust administration can be completed and the trust property delivered to the trust beneficiaries. There is no need to probate the will if the property was all in the trust. If some small items were left out of the trust, probate might still be avoided. This is something for the trustee to determine, with the help of an attorney.

    The trustee/executor should take the documents to an attorney who specializes in probate, trust and estate law to receive guidance on their responsibilities, set up an accounting system, and begin the formal trust administration process, and answer all questions of who is supposed to be doing what. Because property administration is so important, reasonable fees for professional services required in trust administration (to attorneys, tax accountants, appraisers, etc.) can usually be paid directly from the trust by the trustee, and does not need to be paid from the trustee's personal funds.

    A trustee's failure to fulfill their responsibilities properly can lead to lawsuits and personal liability. The questions you pose strongly suggest that there is some confusion about the trust property an trustee's role that should immediately be addressed after consultation with a qualified attorney.


  4. Depending on the details of your situation, this may be either a very complex or a relatively simple situation. Either way, you will probably need an attorney to guide you through the process.

    The first threshold issue is what property is involved: trusts and probates are both, at their core, issues about the ownership of property. Property includes money, stuff (like cars and houses), and legal rights - such as the legal right to be paid (i.e. a debt).

    The second threshold issue is why somebody is trying to be appointed special administrator in the first place. Is a house at risk for foreclosure because the child named in the will and trust simply hasn't acted? Or is somebody challenging the validity of the will and trust? Or is something else involved?

    What you need to do is go and sit down with an attorney ASAP. The legal clock is ticking, and it is usually easier to protect one's rights before an issue is decided than to try to go back and fix something later.

    Best of luck.

    The foregoing does not constitute legal advice and does not form an attorney-client relationship. This information is general in nature and is intended for the public as a whole. Also, this message is not privileged, is not confidential, and you should not include any personally-identifiable information that you would like kept private on the message board. Any person may contact my office directly, but doing so only makes one a potential client, not an actual client. I may or may not agree to represent you after learning more details about your specific case.

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