Q: Does California probate code 10800 apply if there is a will and a revocable trust in place?
My mom is 93 years old. She has bank accounts worth approximately $50,000.0, and her home is worth approximately $500,000.0.
We are setting up a revocable trust for all her assets. We have also created a last Will and Testament.
Ca. probate code 10800 implies that the executor shall be paid at least annually (if I understand correctly). My questions is if this code is really needed if the trust is in place, and therefore, we would avoid probate. None of the children/executors want or need to be paid for their efforts to carry out the will and the trust.
A: No. If a trust is set up AND properly funded then probate is avoided and thus the executor fees are avoided.
A: If the trust is properly drafted, executed, and funded then you should avoid probate and this section would be irrelevant to you as it deals with statutory fees due to a PR in probate. Of course, unfunded assets subject to probate may still get you there through the pour-over will. It sounds like you’re going this alone, and my advice to you with an estate that large is to suggest your mother spend a couple thousand dollars for an attorney to make sure the documents are drafted properly. If you find out you made a mistake after she passes, it will be too late and cost you far more in the end. Good luck.
Sally Bergman agrees with this answer
A: If your mother has a trust that is properly drafted and she put her assets into the trust as required, then then language in the trust will control and you should avoid probate. In that case, the code section you cited will not apply. But I must say one thing: there are some areas of law that non-lawyers can pick up after studying. Trusts and estates are not included in those areas of law. Very specific legal language must be used and, without that, your mother's intent may not be carried out. More importantly, trusts that are not properly drafted can easily lead to litigation, which will cost infinitely more than hiring a trained lawyer to prepare your trust documents. Better safe than sorry! Best wishes.
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