Legal Writing: Probate & Trust Administration Procedures

As lead paralegal for a busy law office in Carmel, California, I produced a 43 page paralegal manual. Topics covered include a detailed overview of the probate and trust administration process as well as general office and paralegal  duties. It’s a very good example of my abilities as a technical and expository writer.

The following is an excerpt.

Chapter 9: Trust Administration

One of the more interesting things you will be doing is assisting surviving spouses and families with trust administration. Procedures will vary according to the client’s situation; the death of the first spouse, the death of the second spouse, simple trusts, A/B trusts and trusts with assets held for later distribution are just a few of the possibilities.

Based on the client’s situation, use the appropriate trustee checklist from the white notebook Robert has in the conference room. It’s a good idea to look through these and familiarize yourself with the material. Many of the initial things that need attending to are pretty much common sense, and there are quite a few things that will be necessary regardless of the type of trust involved. The lists are in the notebook; I would suggest keeping one in each trust administration file you have so that you can use it as a checklist.

Robert has done a nice job of making these lists complete and easy to follow. There are a couple of things that I want to touch on, though, as they can be confusing.

The SS4 is the IRS application you will use to obtain an EIN when necessary. A client’s trust is identified by the trustor’s SSN (either SSN, in the case of a couple). Robert will give you plenty of guidance on when an EIN is necessary, but the basic guideline is that the Social Security number belonging to a deceased person can no longer be used when a trust becomes irrevocable or a probate estate is started. When an irrevocable exemption trust is formed at the death of one of the trustors, you will need to apply for an EIN to assign to the trust that contains the deceased party’s exemption amount. Even if a single client has a trust, upon their passing the trust can no longer be identified by the deceased’s SSN. Furthermore, if a married couple has a simple trust, when the second person dies, an EIN will be necessary.

Ask Robert to clarify until you feel comfortable with this, as anything you do with the IRS can be difficult and time consuming to undo.

You should fill out the form online. I have a bookmark for it marked IRS form SS4 EIN. If you need it, the link is web address is:

https://sa.www4.irs.gov/sa_vign/newFormSS4.do

This form, like everything else regarding the IRS, can be tricky. The first thing to know about it is that it will not accept any punctuation, EXCEPT the hyphens in a Social Security number. So, do not use punctuation. Also, there is a section that asks for the closing month of the accounting year (#11). The form will not accept any information you put in this space. Just skip it.

If you are applying for an EIN for an irrevocable trust (see trust administration in Chapter 6 for more on that) – use the original trust date for the new trust. This doesn’t make sense to me, but that’s how it is. The original trust date will always be the trust date, including any sub-trusts.

Have all of the information you need to apply for the EIN handy before you go to the web page to fill out the form. You will need a death certificate OR the SSN and the decedent’s full name and date of death; the name and date of the trust, if there is one (sometimes you’ll be applying for an EIN for an estate); and the trustee’s (or executor’s) name and contact information, including the COUNTY and state they live in. If you have the form open for too long, it won’t send, so don’t take too much time with it or you will be frustrated. (I think it gives you like ½ hour, so don’t panic, but don’t get distracted by something else and go back to it later in the day; it won’t send.)

When you’re done, make sure that everything is correctly spelled, and that the information is exactly as you want it, because changing it is a pain once you submit it. Push SUBMIT and follow the prompts until you get an EIN (it will display it before you get the opportunity to print it). WRITE THAT # DOWN, just in case the printing process goes awry. THEN you will be given an opportunity to “preview and print”. There is a trick. Go ahead and print it as a PDF file and save it to your desktop. This way the form will fit on one page; otherwise, it will print on two pages and you will be faced with a cut-paste-photocopy project. Then, print the pdf and save the copy on your desktop to the client file.

If you make a mistake, and you discover your error after you’ve processed the form, you’ll need to call the IRS. The local office should be able to direct you; they will likely give you a fax # and you’ll need to fax corrections there. I’ve only had to do this once, and though it’s cumbersome, it does work.

Real Estate chores that need attending to include the following: 

Each piece of real property that the deceased owned in California needs to have the following filed in the appropriate recorder’s office: An affidavit of death of trustee, a preliminary change of ownership report, a death of real property owner form and, if the real property is being inherited by the deceased’s child (or grandchild, if both parents of the grandchild are deceased) a Proposition 58 form. The affidavits are in the templates section of the Client Files, and the PCOR and Prop 58 forms are in Essential Forms. The death of real property owner form is not currently in Essential Forms for some reason, so you will have to go to the appropriate county web site to get this and fill it out by hand or type it. Some counties will let you fill this form out online, so check.

Life insurance and annuities: 

Often the surviving family member will need help with insurance companies. This can be challenging. There will be cryptic forms to fill out, and requirements that you provide things that you won’t have, like letters testamentary (which, as you may already know, are issued by the court to the executor/administrator in a probate proceeding). So, you will find yourself educating many of these companies. Here’s some information that may be helpful.

1. When you are dealing with a trust (as opposed to a probate), and you are asked for letters testamentary, offer documentation of the current trustee. This should be fine, as all they really need to know is who is managing the “estate” (the trust). They likely still won’t speak with you, however, without the written permission of the trustee.

2. If they insist on having proof that there is no executor and no probate, you can prepare and send a small estate affidavit if at least 40 days have passed since the date of death. These are found in the templates section of the Client Files. This document states that there are not sufficient assets (i.e., less than $100k) outside of the trust to warrant a probate proceeding. The trustee/executor needs to sign this and it needs to be notarized. An original death certificate should be attached.

3. They will need an original death certificate. As these documents are expensive, always ask if they are willing to make a photocopy and return the original. They often will.

4. There is sometimes a form that asks for contact information for doctors who treated the deceased. I have no idea why this is required. However, I have had these forms sent back when the information isn’t complete.

Notification of Trust beneficiaries: This is required. Sometimes you will be dealing with a family you have already met, and who seem to be working together on the trust administration cooperatively. Even so, you have to cover your legal bases. Often the communication may not be as open as it would appear; best to make sure that everyone with the legal right to know what’s what is informed.  If we do the mailing for them, you will need to prepare the proof of service and sign it.

A/B Trust information: Robert is the best source for details on A/B trusts, but here are some basics so that you don’t have to ask every time something comes up.

Many of our clients have sufficient assets to make an A/B trust the best option for them. What this means is that they would be subject to the estate tax without clever estate planning in place. An A/B trust is an option that many people in this situation choose. This option is only available to married folks.

An A/B trust starts off as one trust. At the first spouse’s death, the marital exemption amount goes into the irrevocable B trust, which is created at this time for this purpose. The advantage of this is that it shelters the exemption amount from the estate tax it would incur in the absence of the B trust at the second spouse’s death. The surviving spouse may have restricted access to the principal, but can use the income it earns. So, at the second spouse’s death, this $$ can pass to the beneficiaries without any estate tax liability. The Survivor’s Trust (Trust A) is where the remainder of the assets will go. There is MUCH more to it than this brief synopsis, but this should give you an idea of what’s going on.

So, when this comes up, here is what YOU need to know. You will need to apply for an EIN (this stands for Employer Identification Number) for the newly created, irrevocable Bypass/Exemption (B) Trust. The date of this trust (all trusts have dates) is the same as the original trust date. Assets will have to be retitled in the names of these new trusts. Robert, the client and the CPA will make the decisions about which assets will go in which trusts, and you will likely do the legwork. Knowing a little bit about the big picture will help you understand what they are up to, though.

Chapter 10: Probate 

Probates are a lot of paperwork, but if they are straightforward (which they hardly ever are, unfortunately) they are manageable and easy. Fortunately, the basics are universal to the process.

The beneficiaries have to be told everything, as does the court, and there’s a lot of paperwork involved in keeping these folks informed. The beneficiaries are the people mentioned in the deceased’s will (or people they neglected to specifically exclude, but Robert will advise you if this comes up). It’s a great idea to print out a list of these people for the file, and to keep an electronic copy to cut and paste from. You will be sending things to them over and over again. (Until they have received their distribution; then they are no longer entitled to notice. This will occur in instances where you have preliminary distributions.) At any time during the probate process, parties who want to receive special notice about the proceedings may contact you. This is fine, as the probate process is public, but run all of these by Robert first. Assuming he is fine with it, add these folks to the list and make sure that they get all the same notices that the beneficiaries do.

The probate process is a little confusing at first, but the purpose of it is to make sure that the deceased’s creditors are paid, that the estate property is distributed to the beneficiaries according the deceased’s instructions, and that the taxes and other obligations of the estate are met. Everything that the probate process requires is in the interest of getting those things done.

There are white three ring binders at your disposal; use these for probates. I like to make a section for 1) Correspondence, 2) Court papers, 3) Notes, 4) Assets/Administrative items and 6) Real estate. This is a general guideline, of course. There may be probates that would be better organized another way, and if you get one that needs some other system of tabbing, go for it. Correspondence, Notes and Court Papers should always exist, though, just to keep the process sane.

If the probate is for someone who was already a client, you will need to go through the client file and decide what needs to go into the probate file and what needs to be shredded. A deceased person no longer needs a DPA or and AHCD, so shred those. Any information you have on assets will be needed, as you or the executor will need to contact all of the banks, brokerage firms, etc. and get date of death values for all of the assets. As soon as you have statements that reflect these values, you can shred the old information (just so the file is neat and only has current information in it).

You have a blue book at your disposal called “Handling a Probate” which is pretty helpful, but I find that it is sometimes a little bit confusing. There is also a copy of a book called “How to Probate an Estate in California”, which has examples and is much more user-friendly; chapters 13 and 14 are particularly helpful. It’s good to use them together, as the blue book is more law office specific and the other is more for lay people.

Theoretically, probate is a straightforward process. Barring complications, here is a basic probate outline:

  1. Complete Petition for Probate
  2. Complete Notice of Petition to Administer Estate
  3. Complete Duties and Liabilities of Personal Representative, Letters Testamentary and the Order for Probate
  4. File the Petition, with the will attached. WHEN YOU DO THIS, also leave with/mail to the court the Order for Probate, Notice of Petition, Letters and the Duties and Liabilities.
  5. Publish the Notice (if it is a Monterey County probate, we use the Monterey County Weekly)
  6. Mail the Notice. Recipients only get the front of the page. Remember, this has already been filed with the court, so it has a case # and hearing date and time on it.
  7. Make sure you get the proof of service for the notice file stamped after you have sent out. This requires that you make a NEW copy of the notice (just print it again from Essential forms – it shouldn’t be stamped), sign it and take it to the court again (!) so that they can stamp it again. The point is to verify with the court that it has been mailed.
  8. The newspaper will prepare and file a form called “Proof of Publication”, but we need to follow up on this to make sure it’s done before the hearing.
  9. Prepare Inventory and Appraisal – get exec. and Robert to sign and send it to probate referee
  10. Prepare any notices of proposed action that are required (usually for real estate sales, or when selling any other valuable estate asset)
  11. If selling real estate, prepare executor’s deed (unless the Title Company will be handling this)
  12. Notice to creditors/proof of service
  13. Prepare Allowance or Rejection of Creditor Claims (when exec./admin. informs you of creditor claims and they are determined to be valid)
  14. Petition for final distributions and receipts (this will require filing the final accounting[1], report and request for statutory fees)
  15. Final discharge and order

To fill out the above forms, you will need to know some basic information:

  • Date of death
  • AKA’s – from will and other documents
  • Approximate value of the probate estate, including income, real property and personal property – the filing fee to initiate the probate will be based on this amount
  • Names and addresses of survivors, and their relationship to the deceased
  • Whether any survivors are minors, if so, their age
  • Name of executor
  • Whether the will requires a bond (keep in mind that even if the will doesn’t require bond, the court may require it of out of state executors/administrators)
  • Deeds for real property including APN’s, addresses and legal description
  • What county the deceased was a resident in (this is where the probate will occur)
  • What county and/or state the personal representative (executor) is from
  • What newspaper will be publishing the notice
  • Whether the executor has the authority to administer the estate under the IAEA

There are, of course, other scenarios and other forms that may need to be used. This is just a list of the necessities.

Here is the outline again, but expanded to include details:

  1. Complete Petition for Probate.
  2. Complete Notice of Petition to Administer Estate.
  3. Publish the Notice – this must be published 3 times. 1st publication date should be no more than 15 days before hearing. Use the Monterey County Weekly.
  4. Get the Notice filed. OK, here’s the weird part on this one. IN MONTEREY COUNTY, this is a two-step process. IST, you take the notice, unsigned, to the courthouse (this will happen when you take all of the initial paperwork in – the Petition for Probate, Letters, Duties & Liabilities and the Order for Probate). They will at that point give you a case # and file stamp it. 2ND, you fill out another one (using the shiny new case number) and mail a copy of this one out to all of the persons who need to be served (see your contact list). NOTE: Send each recipient only the FRONT of the notice as the back shows the names of all of the beneficiaries. SIGN and date this on the proof of service section and take it back to the court (soon-ish) and get it stamped again.
  5. Complete Duties and Liabilities of Personal Representative, Letters Testamentary and the Order for Probate.
  6. File the Petition, with a copy of the will attached. WHEN YOU DO THIS, also leave with/mail to the court the Order for Probate, Letters and the Duties and Liabilities. – See Robert on this. He will have to write a check for the court filing fee.
  7. The newspaper will produce and send to us a form called “Proof of Publication”. In Monterey County, they will file this for us and send us a copy. If this is a probate in another county, make sure this is the case, and if you need to, get it file stamped.
  8. Prepare Inventory and Appraisal – and send it to probate referee. Robert will do a cover letter. This is time consuming, but not necessarily difficult. Here are the details:
    • Compile all of the assets information you have for the client. All of this information should be in the “assets” section of the probate binder you have created.
    • The Inventory and Appraisal is set up so that Attachment 1 is made up of cash assets (things that have a specific dollar value and do not need to be appraised) and Attachment 2 is made up of items that are listed without values so that the probate referee can go through and appraise them. He or she will then list the value. These assets will be ONLY assets that do not have a known cash value (cars, furniture, real property, bonds, securities, etc.).
    • If there are individual securities as assets, list them on the I&A individually, and include a CUSIP#. There are several resources on the web for looking these up – just Google CUSIP lookup and you’ll find a handy resource.
    • If there is real property in the estate, the executor may very well want to sell it rather early in the process, and you may not yet be ready to submit the entire I&A. No worries; just submit a partial I&A (look under the document heading and you will see the option for “partial” that you can check) and when you are ready to submit another (or the final), you can choose the appropriate option for that occasion from those same choices. If you look in the probate guide, you will find an example of an I&A that was filed in two partials, that required CUSIP#’s and includes real property.

The probate referee will do the appraisals and return the I&A to us. It can then be filed with the court.

  1. Notice to creditors – the executor/administrator will be in charge (with your help) of finding the creditors of the estate. The issuance of the Letters starts the creditor claim period, which lasts for four months or for 60 days after you send out the notices. You’ll be sending each creditor a notice and a claim form (see forms list below. DO NOT completely fill out the claim form for them. Just fill in the top bit (court information, case #, Estate of                 ) and leave the rest blank. The attorney section is for their attorney, not Robert. They will fill this out, if they want to get paid, and send a copy to us, a copy to the executor and a copy to the court. You are not the facilitator of this process; just supply the blank form. NOTE: just send them the front of the notice. The back is none of their beeswax.
  2. Prepare any notices of proposed action that are required – usually for real estate sales, or when selling any other valuable estate asset. Robert will let you know when these are necessary. These notices are handy whenever the executor/administrator is going to do something that someone may take issue with, either now or later. There are statutory requirements regarding the amount of notice that must be given; there is more information about this in the probate guide (see the highlighted material in the “proposed action” section). You will also need to prepare, sign and get file stamped the proof of service for this notice; of course you will have mailed the notices to the beneficiary list first.
  3. Prepare Allowance or Rejection of Creditor Claims (when exec/admin. informs you of creditor claims and they are determined to be valid)
  4. Prepare and file Petition and Order for final distributions and a notice of hearing.
  5. If real estate will be transferred to a beneficiary, prepare executor’s deed.
  6. Prepare and file Final discharge and order, as well as beneficiary receipts.

OK, so probates are never that straightforward. As such, here are some handy bits of information with which should be of help.

  • If an executor/administrator would like to petition the court for preliminary distributions, they must wait until two months after letters have been issued. During that two months, I&A must have been filed. The court will only approve preliminary distributions that do not total any more than 50% of the value of the estate.
  • The executor/administrator should be in charge of obtaining death certificates, compiling a list of creditors and assets, appraising the deceased’s real estate, obtaining date of death values for bank accounts and other cash assets and, in general, running the probate. However, Robert is the executor’s attorney, so this system is tricky. You will need to work with the executor/administrator on these things. KEEP IN MIND that there is only a limited amount of work you can do on the executor/administrator’s behalf, because you do not have the court’s permission to discuss the decedent’s business with banks, insurance companies, brokerage firms and the like.
  • It’s a good idea to get the executor’s email address. You will be working closely with this person, so work out with them the best way to communicate. Often you will be dealing with an older person who may be retired, which means that they have taken this on as their full-time project… so it’s often a good idea to encourage using email as your primary communication so that you aren’t on the phone too often and for too long, if you know what I mean.
  • The proof of service (which we use for many purposes) does not get sent to the people on the contact list, just gets filed with the court. 

If the probate is in Monterey County, you are better off hand carrying any paperwork to the courthouse here in Monterey for filing. The courthouse’s oh-so-helpful hours of operation are M-F, 9:30 – 4, so you pretty much have to make a special trip. (There is more information on filing documents with the court in Chapter 11) 

If the probate is in any other county, it’s a good idea to look at the local rules and see what the preferred procedures are. There’s a green Essential Forms icon on your desktop. Click it open, go to “court rules”, highlight the county for which you need  rules and scroll down to “California rules of the court”.  Click open the little “+” sign and find “probate rules”.  One more click on the “+” next to probate rules and you’ll see the chapters laid out before you.

Should the court require a bond, you can download forms for this at www.bondservices.com. Download the appropriate forms, fill them out and mail or fax them to Comstock Bonding (the address/fax # is on the form) and you’re good to go. Generally, Robert will want to put his credit card number on the form; we’ll bill the client later. The bond company will then send us the paperwork, we get the client to sign it and then it gets filed with the appropriate court. AFTER IT IS FILED WITH THE COURT, you will need to supply Comstock with a conformed copy.

Forms

These are found in Essential Forms in the section called Decedent’s Estates.

1. DE- 111 – Petition for Probate

2. DE- 140 – Order for Probate

3. DE – 150 – Letters Testamentary (or of Administration)

4. DE – 147 – Duties and Liabilities of Personal Representative

5. DE – 121 – Notice of Petition to Administer Estate

6. DE – 157 – Notice to Creditors

7. DE – 172 – Creditor’s Claim

8. DE – 174 – Allowance or Rejection of Creditor’s Claim

9. DE – 160/GC – 040 – Inventory and Appraisal, with appropriate attachments

10. DE – 165 – Notice of Proposed Action

11. DE – 120 – Notice of Hearing

12. DE- 295 Final Discharge and Order

For samples of the forms and for further information about how to fill them out, have a look at the Probate Guide in the white binder that is kept where the probate binders are kept. All the forms necessary for a basic probate are there, just fill in the highlighted portions.


[1] You may have submitted, somewhere along the way, a partial accounting or a petition for preliminary distributions.