Filing a trust with the probate court may be necessary as part of a probate proceeding

Typically, a trust does not have to be filed with the probate court simply because the trust settlor is deceased. However, things may change when there is a need to probate a "pour over" will. When you have to admit a pour over will to probate it is very common to find the same person nominated to be the executor of the will and the successor trustee of the trust. California probate law requires both the heirs of the decedent and the beneficiaries of the trust to be given notice of the probate proceedings. This gives the beneficiaries of the trust the opportunity to come into the probate court and object to the appointment of the nominated executor or file a will contest.

There are a couple of examples that will illustrate when you do and do not have to file the trust with the probate court. In this first example you do have to file the trust with the probate court. Let's assume that Sam is nominated as the executor of his mother's will and is also nominated to be the successor trustee of his mother's revocable living trust. This makes Sam the fiduciary for both the will and trust. California law requires that where Sam serves as the executor and the trustee he has to ensure that notice is given to the beneficiaries of both the will and trust. So, in order for the court to know whether Sam is being honest and giving notice the beneficiaries of both the will and trust, Sam is going to have to file the trust with the probate court. That way the probate examiner can see who the beneficiaries of the trust are and whether or not they've been given notice.

In our second example, let's assume that Sam is nominated as the executor of the will and his sister Patti is the trustee of their mother's revocable living trust. In this situation Sam will be named the executor of the will by the probate court but is not the trustee. So under these circumstances, Sam is not required to give notice to the beneficiaries of the trust and does not have to file his mother's trust with the probate court. He will have to give notice to Patti as the trustee since it is the trust that inherits from the probate estate. Since Patti is the trustee she has a fiduciary duty to the trust's beneficiaries. It is her job to oversee Sam's work and ensure the trust receives all the property it should from the probate estate. If Patti finds Sam's work to be somehow deficient or harmful to the beneficiaries of the trust then Patti, as the trustee, will come into the probate court and seek to have Sam surcharged for whatever harm he is has caused the trust beneficiaries.

The Grossman Law Firm, A.P.C. are San Diego, California probate lawyers.  We help probate estates in San Diego County, California.  We appear in the San Diego probate court for probate cases that come San Diego County south of Escondido.  We appear in the North County San Diego/Vista probate court for probate cases that come from Escondido all the way north to Fallbrook, California.  If you  would like more information on probate and trust administration then order our free book The Insider's Guide to California Probate and Trust Administration as well as our free DVD Probate a Will or Administer a Trust After the Death of a Loved One.