Probate lite

There are two parallel tracks for administration of decedent estates: traditional probate and trust administration. In the years since the advent of revocable trusts, the statutory framework for administration has come to mimic the essentials of probate: notice, inventory, payment of creditors, executor-like powers for the successor trustee, ipso facto trust termination when assets have been disbursed.

Consider a simple estate, whether testate or intestate, consisting of a home, bank and brokerage accounts, tangible personal property of modest value. Under current law, that estate is destined for costly, protracted probate court proceedings. The heir-at-law of a decedent who failed to establish a trust before the end was heard to say, “If he were still alive, I would shoot him.” I am not making up that quotation.

A simple estate could be shifted off the probate track for administration under the existing statutory framework for trusts. A person willing to undertake administration could petition for appointment as personal representative with the powers and responsibilities of a trustee. If there are no objections, the court appoints him or her, and perhaps names a probate referee. Letters issue forthwith. A certified copy is recorded. Assuming no further need for judicial intervention, interested parties say a grateful “good bye” to the courthouse.

It is probable that few decedents’ estates are probated nowadays; most are successfully resolved by transfer alternatives or trusts. If so, would it be fair to say that probate has become somewhat of an historical artifact like the horse and buggy? 

James P. McBride is an attorney in Hayward.