If you have been named as the Trustee of someone’s Trust, and that person has either passed away or has become incapacitated, then you have certain responsibilities to carry out. Unless you are a professional Trustee, you may not know everything that you are supposed to do, or the best way in which to do it. Because being a Trustee carries significant fiduciary responsibilities, in almost all cases it is advisable to have a Trust attorney assist you with properly carrying out your duties. Even professional Trustees almost always have an attorney to handle many of the more technical details, or just to be on call for advice in certain situations. A routine, uncontested Trust Administration can quickly become a contested, litigated action if certain steps are not carried out and beneficiaries begin to feel shut out or like they are being kept in the dark. Proper representation can avoid these problems.
If someone dies and does not have a Trust, then it is very likely that there will need to be a Probate Proceeding instead.
Whether you proceed alone or with an attorney, there are essentially two reasons that a Trustee will take over a Trust from the person who created it:
Two Types of Trust Administration
Many people establish living trusts for a variety of reasons. The two best features of trusts are as follows:
- If the trust maker becomes temporarily or permanently incapacitated, a successor can instantly take over the management of the trust to continue to care for the person, all without any court involvement.
- If the trust maker passes away, the management of the estate can happen without going through a formal Probate Proceeding.
Because of these two possibilities, the goal of the trust administration will be very different depending on which situation you are in.
If the trust maker has become incapacitated, and you are named as the successor trustee, then your main responsibility will be to continue to take care of the trust maker using the trust assets. In that event, you have certain fiduciary duties to fulfill.
If the trust maker has passed away, then your main duty will be to give the proper notices to creditors and other parties, to see to the payment of debts, and to eventually distribute the remaining assets according to the trust terms.
Whichever of these situations you find yourself in, the process can normally be completed in the privacy of our office , within a minimal time frame, without any involvement with the court, unless there is a contest.
Trust contests can occur for a variety of reasons, similar to what can occur in probate contests. Essentially, the reasons for contests come down to three possibilities:
- A person believes that the trust was not property created, and that one or more provisions are invalid.
- A person believes that the person who created the trust did not have the mental capacity to do so.
- A person believes that the trustee is not properly carrying out his or her duties under the trust.
In any of these situations it is best to reach a settlement that is acceptable to all parties, and to avoid taking the matter to court. However, if no settlement is reached, then it will ultimately be up to a probate judge to determine what happens with the trust assets.
Retaining experienced trust attorneys early in the process can help avoid unnecessary litigation, and can help to reach resolution as quickly and inexpensively as possible if litigation does ensue. The experienced Trust attorneys at Lopez & Wilmert, LLP have handled many contested and uncontested trust administration cases, and are available to help you reach a successful conclusion as quickly and painlessly as possible. They can normally be reached at our La Mesa office at 619-589-1112, but they also schedule appointments in our Chula Vista office when clients prefer.