Probate is a
state court supervised procedure to authenticate a Will and to pass ownership
of a deceased person's assets to the beneficiaries under that Will. If a person
elects to have a probate by signing a Will (rather than signing and
transferring assets to a revocable living trust) will court supervision afford
greater protection than the Trust?
In example 1,
a widow has three children and has a Will leaving her assets equally to them,
but she dies one month after having created a new Will leaving everything to
her boyfriend. When the boyfriend petitions the court to admit the new Will to
probate, the children must be given notice and will have the opportunity to
It would be
inaccurate to say that probate court supervision will provide the children or
the boyfriend with greater protection than they would have had the decedent
signed and funded a living trust. The two
adversary parties could either reach a settlement or could resolve their
disputes through mediation, arbitration or trial.
trying to protect one side or the other, the probate court will typically be
concerned with the circumstances of the execution of the last Will; the
decedent's mental health, and the degree of influence if any that the boyfriend
exerted. Each side may try to rely on presumptions, i.e., that the offered Will
is presumed to be valid if certain evidence of its execution is available, or
for example, if the boyfriend was a caregiver, that the burden of proving the
Will's validity could (if state law dictates) be shifted to him.
In example 2,
a widow has three children, her Will leaves her assets equally to them, but it
names her brother as executor. The
brother is appointed as executor and one year later the three children become
concerned that the probate has stalled.
Some (but not all) probate courts calendar a future date for the
executor to report back to the court on the progress of the probate and to explain
why the probate has not been closed.
This procedure could provide some pressure on the executor to complete
his duties in a timely manner, but it is no substitute for vigilance by the
executor were ordered by the court to account and if the executor admitted that
there were no assets left, the court would sanction him, requiring him to make
the estate whole. But if the executor
squandered the estate's assets because he had nothing left of his own (having
previously squandered his own assets), the probate court would have little or
no ability to make the three children whole.
Executor petitioned the Court to be appointed, the three children could have
objected to his request to have bond waived.
If the Executor were bonded, that would provide protection.
Alternatively, they could have requested the court to order the executor to
deposit all estate funds into blocked accounts at a particular bank. But, as is common, if the executor were
granted broad powers when he was appointed and if no bond was required, he
would typically be able to engage in wrongdoing which injures the estate and
its beneficiaries before the court or the beneficiaries even knew that the
Spiro is a Beverly Hills attorney who is a certified specialist in
Taxation and in Estate Planning, Probate and Trust Law. He holds a Masters
Degree in Taxation from Golden Gate University and has taught tax and estate
planning courses at UCLA and USC. He has been named as Super Lawyer by
Los Angeles Magazine.
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Martindale-Hubbell profile on www.martindale.com