Is Probate Necessary Here?

Factual Questions
1

My dad has taken some steps to prepare for his death. He’s set up a trust, a Last Will and Testament, a general power of attorney, and a health care power of attorney. I’m listed with my sister as a “Successor Trustee” in the trust, we’re shown in his will as co-executors, and in the other documents as co-attorneys, if that’s the right term.

He and my sister live in Nevada, and I live in California. The trust says that it runs under Nevada laws.

The trust refers to “Schedule 1” and “Schedule 2” which list the assets of the trust. I don’t think these exist yet. My dad seems unconcerned: he points to his Last Will and Testament that says that upon his death, the Trust is the sole beneficiary of his assets. He thinks that all we need to do is bring the trust and death certificate to the various institutions that might be involved, and that will be enough.

He has a morbid fear of lawyers and the court system - bad experience with a divorce. (Mom died many years ago, FWIW.) My dad does not want his estate to go through any probate process, no way no how.

For estate assets to be distributed after a death, is probate necessary to make things “official”? Or as stated above, is the death certificate together with the LW&T enough to get things to move along? Can the probate process can be completely avoided as things now stand?

I’ve got other questions. I suppose I could send them to the attorney who prepared the trust and other docs, but I’ve already suggested this to my dad, who thinks they’re foolish questions and that he already knows the answers. Further, I’ll admit this, the questions reflect my lack of confidence in what I’ve been told so far, but I don’t want to be undiplomatic about it - unless I need to. The attorney involved is his attorney, not mine - and I doubt she could answer my questions without involving him.

My interest is to do a good job as executor and to try to head off later problems. No, I don’t entirely trust my sibling.

Any generic recommendations? Any recommendations about how best to get recommendations?

2

If he has any real propery or assets, and/or outstanding debts, probate will be necessary. If the will is properly done, it is a very simple process. The big issue is making sure any and all creditors that have any claims are taken care of. It can be a hassle to reopen a probate because a creditor has not been paid and assets have been distributed. Having to ask heirs to return property so it can be sold to take care of an debt can be ugly. My paralegal business has handled a couple of small probate cases and things have gone smoothly. I would suggest a consultation with a Nevada attorney thought just in case. With all the things to deal with at someone’s passing, trying to deal with all the estate matters is best left to someone without any emotional attachment.

3

My recommendation is to get your own lawyer. You’re asking for specific legal advice about your situation, and you’d be best off talking to your lawyer about that. To get a lawyer, call the Nevada Bar or the Beverly Hills Bar Association Lawyer Referral and Information Service for a Nevada lawyer or a California lawyer, respectively. (I’d recommend a Nevada lawyer, because she will likely know the answers off the top of her head.)

I am not your lawyer, or the lawyer of anyone you know; you are not my client; and this isn’t legal advice. Also, I don’t do estate work, so read on at your own peril.

Here’s my problem, though, from an analytical perspective: how does a third party, like a bank, know that a will is valid? Answer: because a probate court says it is; with a court order, the bank can’t be sued for releasing funds. Why do people use living trusts? Answer: because, before death, the trustor moves all property into the living trust (the aforementioned schedule 1 and schedule 2). Thus, at the trustor’s death, there is nothing in the estate to be probated.

I know I say this way too much, but get thee to a lawyer. And good luck. I hope it is a looong time before you have to figure out how your dad’s will works.

4

Thanks. I had just about decided this was the thing to do, but thanks for the nudging, and thanks for the good wishes.

5

I’m not a lawyer, but want to share an observation about having co-executors.

My sister and I are/were both co-executors of our late father’s estate, and it was a pain in the butt. EVERY single thing that needed to be done had to be done by both of us, physically present, at the same time. At the time, fortunately, we both lived in the same state, but had this all occurred after she moved nearly across tht continent it would have been even more awful. I guess Dad wanted to be sure nobody’s feelings were hurt, but either one of us would have been glad to have the other take the job. The estate was pretty minimal anyway, and neither of us has a larcenous streak.

Obviously, laws may well be entirely different where you are, but if it were me, I’d try to convince Dad to pick just one executor. Unless, of course, the two of you don’t trust each other.

6

A word of caution, and IAAL. People have the mistaken belief that a will that directs everything go into a trust somehow avoids probate, when in fact the will must be probated and the probate court involved so as to supervise the transition of the decedent’s probate assets from the decedent’s name into the trust. In order for probate to be avoided, the person must transfer his assets to the trust before death during his lifetime. That is, Joe Blow’s assets, be that bank accounts, stocks, real estate, motorboats, cars, etc., must be in the name of “The Joe Blow Trust dated May 15, 2005”. If such items are in Joe Blow’s name only at death then they get probated, no matter that there is a trust and a will that directs that all the decedent’s assets go into the trust.

7

Actually, as I correct my own mistake before the other alert Dopers here do, the assets should be in the name of “John Doe, Trustee of the Joe Blow Trust dated May 15, 2005.”