Len and Rosie: Is attorney needed to clean up 'mess' of an estate?
Len and Rosie

Len and Rosie: Is attorney needed to clean up 'mess' of an estate?

Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len and Rosie,

My brother and I are trying to manage my mother and stepfather’s estate.

The one thing that keeps coming up is that we need a court document specifying that my brother and I are executors of the estate.

When we asked the lawyer what we should do, he said just have them call him. This is for the IRS, a life insurance company and also a bank. Is it common when the estate is less than $1 million?

I should also explain that the law firm that originally did the living trust closed its doors and another firm took over the trust.

My parents found out when they want to make some changes to the trust. When they passed, my brother and I were left with a mess.

We immediately got a copy of the trust and called the lawyer.

I have to say he has not been very helpful and this is that last straw. Should he help us obtain this court document showing that my brother and I are the administrators or can we do this on our own?


Dear James,

The court document the bank and insurance company are talking about is called “Letters Testamentary,” which is granted to the executor of a probate estate only after a will has been admitted to probate.

Whether or not you need to probate the estate of the survivor of your mother and her husband depends on the size of the probate estate.

By “probate estate,” we mean the properties and assets titled solely in the name of the surviving spouse, without any pay-on-death beneficiaries or joint tenants.

Assets held within the trust don’t count either, but insurance policies that don’t have designated beneficiaries do count and are subject to probate.

If the total probate estate is $150,000 or less, then you and your brother can collect your parents’ various accounts using small estate affidavits under Probate Code section 13101.

If the total is more than $150,000, you need to file for probate in most cases.

If your mother and stepfather failed to transfer some of their assets into their trust, it may still be possible to avoid probate, depending on the terms of the trust and how each of their non-trust assets are held.

Under the right circumstances you may petition the court under an appellate court decision in the case, “Estate of Heggstad.”

What the petition comes down to is something like this: “Dear Judge, mom and dad made a trust, and the trust says their home and other assets are trust property, but they never bothered to put everything in the trust the way they should have. So please, judge, please give us an order saying that our parents’ assets are in the trust anyway.”

The first step in trust administration is to review the trust, and each and every asset owned by your mother and step-father that has to be transferred.

What has to be done depends on the nature of each asset and how it is titled, and whether or not there are any pay-on-death beneficiaries.

This can be tedious if your mother and her husband were not very organized, but it has to be done, and the legal fees for this work are almost never included in the fees lawyers charge to create a trust.

You do not have to hire your mother’s old attorney or the one who replaced him or her, but you should sit down with a trusts and estates attorney and review everything.

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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