Q: I am the trustee and a beneficiary of my mom's estate. She had a fully funded trust. Must the will still be filed?
There is not going to be a probate. The CA probate code saying a will has to be lodged doesn't mention if that's still the case if there's a trust and no probate is necessary. Thank you.
A:
Dear Riverbank CA:
California Probate Code s 8200 makes it mandatory that the custodian of the original will lodge (file) the will with the Superior Court of the county where the Decedent lived. The custodian must also deliver a copy to the named executor, or if the custodian does not know where the executor is, to a beneficiary if the custodian knows how to locate them.
The purpose of the section is two fold. It protects beneficiaries by avoiding the loss or destruction of the will after death, and it protects the custodian from claims that they destroyed the will.
If the custodian fails to lodge the will, and there is an issue later and the will cannot be located, the custodian could be liable for damages. Or at the very least, subject to an expensive, even if ultimately meritorious, lawsuit.
I know that it seems silly when there is no probate because all assets are in a Trust, but it is better to comply than to face questions later. However, the fee for lodging the will is an expense that the Trust should cover.
Best of luck.
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