Q: All assets went to trust but now I am told I need probate to pursue a lawsuit. What is the cheapest/easiest way in CA?

A: Kansas City:

I'm afraid not. The appointment of an executor/administrator is required to represent the Decedent. But, this is not necessarily a bad thing, nor that expensive on the front end (or perhaps at all.)

Any lawsuit proceeds for medical malpractice will be paid to the estate, which in turn should pay it over to the Trust as the beneficiary of the Decedent's will. (If it is a pour over will.) However, if the malpractice resulted or contributed to the Decedent's death, their are also potential independent wrongful death claims which are not paid to the estate. (Due to California's procedural laws, all the suits need to be brought together.)

Most lawsuits end In settlement, a division will need to be made about what percentage goes to the wrongful death claimants and what percentage is paid to the Trust. While this normally occurs at settlement, it can occur after.

When you involve a court appointed representative, the court will approve the settlement and division of settlement funds. This approval provides a strong protection against any later claim the funds were mismanaged or someone was left out.

As to cost, there are two components. Fees for filing and notice of the various petitions, and the fee for the representative and his or her attorney. In a settlement, these can be shifted to the Defendant as a term of settlement and may be an item of damages. Also, the larger of the two, the attorney and representative fee, is dependent on the value of the estate, in this case the amount paid to the estate in settlement. It is 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000 and so forth. And, the attorney's fees are payable only upon court order at (normally) the closing of the estate, and paid though estate funds. (There are also extraordinary fees, but that discussion is beyond the scope of this answer.)

I would not suggest that you do this without an attorney. What you need is an attorney to handle the medical malpractice claim, and one to handle the probate (these are very specialized areas of law. You would not hire a podiatrist to do brain surgery.) I am assuming that you are already working with a malpractice attorney. I would see who they recommend, and/or contact the local county bar association's referral service in the county where the malpractice action will be filed. Most will provide a referral to an attorney who can discuss what needs to be done, and costs, for a small fee.)

And, if the Probate is a very simple probate, the attorney may discount the statutory fee.

Best of luck.