Most people facing this question have just learned they were named successor trustee, or they are an adult child or surviving spouse holding a binder of trust papers and a house full of a parent's things. Relatives may already be asking when the house will be dealt with, and nobody explained what the job involves or what kind of lawyer helps with it. This page explains what California trust attorneys do after a death, what the State Bar's certification means, and how a family can check a license and ask the right questions before hiring.
A successor trustee is the person the trust names to take over managing it after the person who created it, called the settlor, dies. A beneficiary is a person the trust names to receive property.
What a Trust Attorney Does in California
Trust administration, as this article uses the term, means settling a trust after the settlor's death. A trust attorney typically helps the successor trustee read and interpret the trust document. The attorney also helps identify what the trust owns, notify beneficiaries, pay debts and expenses, and distribute what remains. California law gives the trustee room to get help with administrative duties. Under Probate Code section 16247, a trustee has the power to hire persons, "including accountants, attorneys, auditors, investment advisers, appraisers (including probate referees appointed pursuant to Section 400), or other agents," even if they are associated or affiliated with the trustee, "to advise or assist the trustee in the performance of administrative duties." In that list, probate referees appear as a kind of appraiser rather than as a separate category.
That settlement work is different from trust creation. Creation is planning done while a person is alive.
Trust and probate work overlap, but the process is different. The California Courts' Guide to property after someone dies describes probate as a court process in which a judge appoints a personal representative. That person collects the property, pays the bills and distributes the rest. Property properly titled in a living trust is usually settled by the successor trustee without opening a probate case. For that reason, a trustee often relies on a lawyer's guidance rather than a judge's orders.
Trust litigation is a third kind of work. It covers contested matters, including trustee removal and claims of breach of fiduciary duty. It is handled by attorneys who litigate trust cases.
The California Certified Specialist Designation in Estate Planning, Trust, and Probate Law
The State Bar of California certifies attorneys as Estate Planning, Trust & Probate Law certified specialists. According to the State Bar's brochure, What Can an Estate Planning, Trust & Probate Law Certified Specialist Do for You?, a certified attorney must have done all of the following:
- passed a written examination in the field
- demonstrated extensive and varied experience in it
- completed additional and ongoing education requirements
- been favorably evaluated by other attorneys and judges familiar with their work
The brochure says the State Bar certifies specialists "to help the public identify attorneys who have demonstrated proficiency in specialized fields of law." It also says that each attorney sets their own fees.
Every California lawyer must be licensed, whether certified or not. Business and Professions Code section 6125 provides that "No person shall practice law in California unless the person is an active licensee of the State Bar." To check certification, the brochure directs readers to the State Bar's Attorney Search webpage. There, a reader can select the Certified Specialists link and search by specialty.
ACTEC, the American College of Trust and Estate Counsel, is a separate national organization with its own fellowship. It is not a State Bar certification. Neither a certification nor a fellowship guarantees any particular result in a trust administration.
Trust Administration After a Death: When an Attorney's Help Is Typically Needed
For a successor trustee, the work starts with the death. The first step is reading the trust document closely, including any amendments. This is often the first point where people ask an attorney what a clause means.
The main steps that follow are these:
- Send the required notice. California law requires the trustee to notify beneficiaries and heirs within a set period after learning of the settlor's death.
- Identify and value assets. This covers real property, financial accounts and any business interests, along with how each one is titled.
- Retitle trust property. Accounts and real estate move into the successor trustee's name or toward the beneficiaries.
- Pay valid debts and expenses. These are paid before anything goes to beneficiaries.
- File required tax returns. A CPA, an enrolled agent or a tax attorney handles the trust's income tax returns.
- Distribute according to the trust's terms. The trust document, not family preference, controls who receives what.
A trustee may be repaid for costs out of trust property. Probate Code section 15684 allows repayment for "expenditures that were properly incurred in the administration of the trust." It also allows repayment for costs that were not properly incurred, but only "to the extent that they benefited the trust."
A house held in the trust can raise a property tax reassessment question. The county assessor's office handles reassessment and exclusion claims. When beneficiaries disagree or a trustee's conduct is questioned, the matter is handled by an attorney who litigates trust cases. More detail on the steps above is in the guide to settling an estate with a trust.