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

Do you need to file a copy of the trust with the probate court?

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 heirs of the decedent and beneficiaries of the trust are given notice of 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.

Here are a couple of examples that will illustrate when you do and do not have to file the trust with the probate court.

In the first example filing a trust with the probate court is required.

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 when Sam serves as both the executor and the trustee he must give notice 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 to beneficiaries of both the will and trust, filing a trust with the probate court is required. By filing a trust with the probate court, the probate examiner can see who the beneficiaries of the trust are and whether or not they’ve been given notice.

In the second example filing a trust with the probate court is not needed.

Let’s assume Sam is nominated as executor of the will and his sister Patti is trustee of their mother’s revocable living trust. Sam will be named the executor of the will by the probate court but is not the trustee. So in this case, Sam does not have to give notice to beneficiaries of the trust and filing a trust with the probate court is not needed. He will have to give notice to Patti as the trustee because 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.

 
Scott Grossman

Scott Grossman

Attorney

The Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307
 

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