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Len and Rosie: Avoid this living trust problem
Len and Rosie

Len and Rosie: Avoid this living trust problem

  • Updated
Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len and Rosie,

Mother has passed away and my sisters, and I are her co-executors and co-trustees.

We were told by the bank that we are unable to open an estate account to access any of her funds unless we put the estate in probate.

Why did we have to have a trust if the estate still has to go through probate?

When my mother made her trust she was assured that there would be no probate and that she wouldn’t put her children through what she went through when my father died.

Are there any banks that will honor the will and trust as she made them?

I don't want to ask her attorney because it costs so much.

Where are my civil liberties if no matter what mother wanted done with her hard earned money, the court gets to make the final ruling?

Why are lawyers telling people to set up living wills and trusts if they do not protect our personal rights?


Dear Mimi,

It is difficult to say what went wrong without reviewing in detail your mother’s trust, the assets she owned upon her death, and how these assets are titled.

If the bank is saying that a probate is necessary, what must of happened was that your mother neglected to fully fund her trust with her assets.

Both she, and you, are likely victims of the “Living Trust Myth."

The Living Trust Myth, perpetrated by trust mills and some lawyers who don’t do such a good job in advising their clients, comes down to this: “Now that I have a trust, everything will go to my children automatically when I die, and it will all be for free.”

This cannot be further from the truth.

Creating a trust to avoid probate is usually a very good idea. It is easier, cheaper, and less time-consuming to administer a trust than it is to probate an estate in court.

However, trusts are not automatic. They have to be properly funded and administered in order to work.

Your mother may not have retitled her accounts into the name of the trust. Anything titled solely in her name upon her death belongs to her probate estate, not her trust.

If these assets are worth less than $150,000 in total, then probate isn’t necessary and you can collect her estate using small estate declarations prepared by an attorney or using a form supplied by the bank (not all banks do this).

Also, if the assets in your mother’s estate are listed on the schedule of trust assets in the back of her trust, it’s possible to obtain a court order declaring these assets to be in the trust without having to go through probate.

You need to consult with a trust and estates attorney to review your mother’s estate and figure out what you need to do to straighten this out.

It is going to cost money, but it is the only way that you and your sisters are going to be able to distribute your mother’s assets.

The laws regarding probate and trusts exist not to thwart your civil liberties, but to protect the rights of each of us, including your mother, to pass our assets on to our chosen beneficiaries upon our deaths.

Without the law, the person who shows up first with the biggest truck gets everything.

Even though you do not want to deal with any attorneys (except us), you and your sisters need help.

Len and Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505.

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