Do Wills Avoid Probate?

Executors and administrators are both appointed by the court to take charge of an estate. They are both referred to as “personal representative of the estate.” The powers and responsibilities of executors and administrators are identical. The difference is that an executor is someone nominated in the will and the administrator is not nominated in the will. Obviously, if there is no will, whoever gets appointed will be an administrator. If there is a will, but the person appointed is not nominated in the will, then they are an “administrator with will annexed.” Executors are not appointed in a will. They are only nominated. No one is actually an executor until they have petitioned the court to be appointed and the court grants the petition. The legal opinions stated herein are general and do not necessarily apply to particular situations. If you have a specific legal problem, contact an attorney. If you have a subject that you would like to have discussed in this blog, please contact me at (661) 269-3505, or email robplunkett@robplunkett.com .

Here is the advice I gave and will continue to give to clients who are going to testify at a deposition or a trial. Tell the Truth: If your case can’t survive the truth coming to light, you should settle or dismiss it. Lying under oath is a felony. Even if you don’t mind committing a felony to win a case, there are practical reasons to stick to the truth. First, the saying, “Oh what a tangled web we weave, when first we practice to deceive, is accurate” Reality is a web of cause and effect, if you pull one string, it will pull a lot of other strings from their former position. If you lie, there are bound to be other things that also have to be true for your lie to stand up. Lawyers are good at finding how your lie can’t be true when the other facts connected to it are established. It’s so much easier to keep track of the truth than it is to keep track of everything connected to a lie. Answer the Question that Is Actually Being Asked and Not Something Else You’re Guessing the Questioner Really Wants to Know: In everyday discourse, if someone asks you, “Do you have the time?” you naturally will answer, “11:15.” In a testimonial situation, there are three correct answers to this question, “Yes,” “No,” and “The time to do what?” Question: “How many drinks did you have that day?” The only correct answer to that question is either, “none,” or a number, nothing else. Answer the Question, the Whole Question and Nothing but The Question: The interrogator is not your friend. Anything you say can be used against you. Nothing you say can be used in your favor. Also, information is a valuable asset in a court proceeding. Do not give it away. If the other side neglects to ask the right question, don’t do their job for them. Finally, if you volunteer information, that can open the door for the other side to cross-examine you or alert them about something else they should ask you about. Do Not Guess if You Are Unsure About What Is Being Asked: Ask for clarification, but do not go overboard. I did have one client who literally asked, “What do you mean by that?” every time she was asked a question. Doing that makes you seem stupid or deceitful. Unless Your Lawyer Puts You on The Stand, Your Lawyer Will Probably Not Ask You Any Questions but If He or She Does, Pay Close Attention: If your lawyer is going to put you on the stand, he or she will go over your testimony and give you appropriate advice. I only asked questions of my clients in depositions if I thought they had misspoken and usually rephrased the question to alert the client as to what was wrongly stated. If you get a question, think hard about what you said and consider whether it was what you meant to say. Finally, Think Before You Speak, but Don’t Overthink It: You are being asked about what you know. If you don’t know something, say so. If you are unsure, say so. Don’t treat the process as a battle of wits. If you get asked a trick question, your lawyer should object. Pay attention, speak honestly, deliberately, and with conviction. The statements herein are general and may not apply to specific situations. If you have a specific legal issue, contact an attorney. My law practice is devoted to issues of wills, trusts, probate, estate planning, and related fields. You may contact me any time at (661) 269-3505 or robplunkett@robplunkett.com. My office is in Lancaster, California.

The 76-Page Con Job Recently, I heard that a client of mine, who had moved out of state was told by an attorney there that he would have to have his trust redone since it was in written in another state. First off, that was a lie. A trust made in one state is just as valid in every state as it is in the state in which it was made. He was conned into paying to have it redone and he was surprised to see that it was 76 pages long, fully four times as long as the one I did for him. Since every one of the trusts I have written have done their job without a hitch, the question arises, why was this one so long? In fact, why are so many legal documents so overlong? Why is it So Long? Obviously, a legal document must cover the subject, including necessary definitions, covering contingencies, explaining the purpose, etc. That is fine. In documents as with communication in general, my philosophy is, “Say what you have to say and then shut up.” Why do so many lawyers add so much excess to their documents? Here are my theories. It makes the client believe that he or she is getting more for his or her money. Getting a big stack of papers seems more impressive than a small stack. The client is supposed to think that the attorney worked hard to produce it. The truth is that, in general, the longer the document, the less input the attorney probably had in writing it. If it’s really long, it is likely a form the attorney got from someone else. Usually, when someone comes to my office with one of these epic trusts or wills, the paperwork looks familiar. It looks familiar because I have literally seen it before with only the names and a few details different. It’s a form, probably ordered from some company. In contrast, every word in my trusts, wills and associated papers is there because I personally put it in there. It is intimidating. All that legal language is kind of scary. It is supposed to convince the clients that, if the clients cannot understand what it means but the attorney does, the attorney must be smarter than they are. They don’t know any better They are doing what their senior partner did or got it from some book of forms and they just go with that without asking if each provision is necessary or helpful. Why this is Harmful to the Client Clients Should Understand What They Are Signing It is tough enough to read a concise legal document if you are not legally trained. It is practically impossible to do so when confronted with 76 pages of small type. I have acquired a number of clients by deciphering long trusts done by other attorneys and explaining their meaning. Surprisingly often, the client’s reaction is, “That’s not what I want!” By keeping things concise and as close to normal language as possible, I am able to get my clients to read and understand what they are signing. I send drafts of my documents to my clients. If they don’t understand something, I will explain it to them. Clients Will Pay More to Have the Document Interpreted and Administered The time is likely to come when a lawyer or several lawyers will try to figure out what the will, trust, contract, etc. actually says. Lawyer’s hourly fees basically start at around ten cents per second. At that rate, the fees for having a lawyer interpret a document by ploughing through pages of unnecessary verbiage to find the bits of necessary verbiage are going to be much higher than doing the same thing with a document that omits that excess. MOST IMPORTANTLY Every word in a legal document is a chance for lawyers to make mischief Since lawyers will twist every word they can to gain an advantage, it is vital that everything in a legal document is stated as concisely and distinctly as possible. If something does not need to be said, then don’t say it. The admonition that, “Anything you say can be used against you,” applies to legal documents. Here's an example: A lot of wills have this provision: “I direct that all my just debts be paid.” This provision is absolutely unnecessary. The law already provides that the estate will have to pay all lawful debts. The only possible effect of that provision is that it might cause the estate to pay a debt it would not have to pay otherwise. Let’s suppose that the person who made a will with that provision borrowed money twenty years ago and stopped paying ten years ago. The lender or the lender’s successor cannot sue for payment because the four-year statute of limitations is long past. This means that because the lender did not sue within four years of the last payment, its claim is barred by the passage of time. The debt still exists but it is unenforceable. However, the will directs the executor to pay all “just debts”. The argument would be that, regardless of the statute of limitations, the debt is still a “just” debt even though it is unenforceable. The lender did loan the money and should be paid except for that legal technicality. Saying that the executor shall pay all “just” debts, if it means anything, means that all just debts are to be paid whether they are enforceable or not. On its face, that is a pretty solid argument. The only defenses I see would be to argue that the offending provision is just meaningless jibber jabber or that a debt that can’t be enforced because of a legal technicality is not a just debt. I cannot say whether that argument would prevail at trial. However, if the amount is large enough, either the lender or the entity that currently holds the debt might find it worthwhile to try. That means litigation, legal expense, and possible payment of some or all that debt as a settlement or a judgment. The legal opinions stated herein are general and do not necessarily apply to particular situations. If you have a specific legal problem, contact an attorney. If you have a subject that you would like to have discussed in this blog, please contact me at (661) 269-3505, or email robplunkett@robplunkett.com .

The trusts I do expire either only when there is no property left in the trust or 20 years after the death of the last person mentioned in the trust. Trusts end when there is no property to be administered by it, the person with the power to do so revokes the trust or it reaches that ridiculously long deadline. The last is because of a legal rule, which is too complicated to explain here and is not one that people need to worry about unless they are planning to be frozen when they die to be revived a long time later. I have heard of attorneys who offer their clients, in addition to the trust and associated papers, a trust review and updating service, usually for an annual fee. In almost all cases, this is a waste of money. Having your trust reviewed is often a good idea, but not because it might become stale but because it might be defective. Some trusts are badly written, do not say what the client wants them to say. They can be invalid for various reasons or have some provision that defeats the purpose. Those possibilities make a review of the trust worthwhile, but by someone else, not the person who made it in the first place. The main downside to having it reviewed is the attorney fee. I do not charge a fee to review a trust. An attorney can set up a trust in a way that will require updates. One way is to specifically identify what is in the trust. Then, every time your property changes, you need to update the list. I never do that and I see no advantage to doing that, except to fatten my bank account. I set up my clients’ trusts so that there would only be three circumstances whereby the trusts should be revisited. You change your mind. If you decide to change something the trust provides, such as changing who gets what or who will be in charge, you must amend the trust. You change your marital status. If get divorced or you get married after the trust has been made, the trust must be changed or reaffirmed. However, if you are widowed, you should tell me, but it is unlikely that you will need to change anything. The trust goes on, with you in sole charge of it. You acquire new property that has a title on record. Regardless of what the trust says, the title on record controls. Any real property needs to be transferred into the trust. Any accounts need to reflect the trust either by being put in the trust’s name or having the trust specified as the payable on death beneficiary.

Trusts have existed for hundreds of years. Originally, they were intended for people like the Rockefellers and the Kennedys to enable the makers of the trust, called the trustors, to do things like prevent their heirs from getting their share of the fortune all at once. Trusts have five ingredients: The trustors, who make the trust, The trustee, who runs the trust, The Beneficiaries, who get the benefits of the trust, The trust instrument, which defines the terms of the trust, and The trust property. Starting in the 1960s, trusts also became a means of avoiding probate by way of what is commonly called, “a living trust.” In a living trust, the trustor creates a trust wherein the trustor is the trustee and the beneficiary during his or her lifetime. Everything the trustor owns is put into the trust and somebody is designated as the successor trustee after the trustor’s death. That means that the trustor keeps total control over his or her (or their) assets while alive and able to function. Then, when the time comes, the new trustee takes over and is required to do what the trust says. This usually means transferring the trust assets to the beneficiaries. This avoids probate because probate is the traditional means of disposing of the decedent’s property and, with a properly done trust, the decedent technically doesn’t own anything. It’s all owned by the trust and is disposed of by the trustee according to the trust terms. This is more economical than probate, sometimes by orders of magnitude, and provides flexibility. If you want to do anything with your estate after death except give the heirs their shares in one lump sum, a trust is the only way to do it. The statements herein are general and may not apply to specific situations. If you have a specific legal issue, contact an attorney. My law practice is devoted to issues of wills, trusts, probate, estate planning, and related fields. You may contact me at any time by phone or robplunkett@robplunkett.com. My office is in Lancaster, California.

Probates in California have built-in delays. First, the court has to hear the probate petition. How quickly it is heard depends on the court and the particular judge. It could be six weeks. It could be six months. It could be slightly shorter or a lot longer. Then, the court has to sign the papers giving the personal representative the power to administer the estate. That can take days or weeks. Once the petitioner is appointed and the papers issued, creditors have to be given four more months to file claims. At the end of that four months, the Final Account, etc. can be filed. The Final Account also needs to be heard by the court, which means another delay like that for the original petition. If the Final Account, etc. is approved, the order must be signed and the assets distributed. Once the distribution is completed, including recording all necessary documents, and when all receipts and releases have been signed, the personal representative can petition for discharge. Once the discharge is granted and the bond, if any, has been exonerated, the case can be closed. There is no limit on how long it can take, though at some point the court will have to be informed as to why it is taking so long. Some have taken decades. This describes a normal probate proceeding. Even where someone has died without taking the necessary steps to avoid probate, there may still be a way to bypass the court process altogether or an available proceeding that is less expensive and time-consuming than regular probate. I am familiar with these and may discuss some of them later. The statements here are general and may not apply to specific situations. If you have a specific legal problem, contact an attorney. Robert

First off, they are not talking about the kind of letter you mail. They are referring to Letters Testamentary or Letters of Administration. The term “Letters” refers to the paper giving the person in charge of a deceased person’s estate the power to act on behalf of that estate. Getting Letters is no simple matter. Letters are only issued as part of a probate proceeding. As I explained in two of my previous posts, this is very expensive and takes a long time. In demanding Letters, the bank, etc. is telling you to start probate. Fortunately, even though the institution is saying you need Letters, we may be able to get what you need without getting Letters. The issues of whether you really need Letters, whether you can get Letters and how you can possibly accomplish what you want without Letters are issues I am familiar with. Call today for an appointment, I do not charge for consultations concerning the issues mentioned in this post. The legal opinions stated here are general and do not necessarily apply to specific situations. If you have a specific legal problem, you should contact an attorney.