Attorney can help when mom dies

By McNichol & Tillem

Dear Len & Rosie, My mother named my sister and me as successor co-trustees in her revocable living trust; and co-executors in her will.

We are the only heirs and will split her property 50/50. My question is, upon my mother’s passing, do we need to register with the probate court to be able to disburse her property? Her estate is less than $3 million (that includes her home owned free and clear) and there’s no dispute as to who inherits what. We’d rather do this ourselves and not use an attorney.

Joy

Dear Joy, When your mother passes away, you and your sister should see an attorney. While it is possible for you to do much of the work itself, it’s impossible for us to tell you precisely what you have to do in order to properly administer your mother’s trust. Every case is different and depends not only on the exact terms of your mother’s trust, but also on exactly how each of her assets are titled. You can’t get to Point B (final distribution to you and your sister) without first identifying Point A (where everything is upon your mother’s death).

In general, the first step is to get everything in your and your sister’s names as trustees. That usually requires affidavits of death to be prepared and recorded for your mother’s home and any other land she owns. Complicating this is the property tax paperwork that you need to submit to the county assessor to avoid losing your mother’s Proposition 13 protected assessment. Don’t try this unless you know what you are doing, because if you make a mistake your property taxes may skyrocket in comparison to what your mother pays today.

Non-real property assets have to be transferred to you and your sister as trustees, under a taxpayer identification number obtained from the Internal Revenue Service. Usually a summary of the trust document, called a Certification of Trust, is also required. Stocks and other securities also have special transfer documents to prepare. So do mobile homes.

By the way, now would be a good time for you to examine all of your mother’s assets and make sure they are held by her as the trustee of her trust. Otherwise, there could be a probate upon her death. Your mother should also verify that she has named beneficiaries on all of her retirement accounts.

Once everything is in your names as trustees, it’s a matter of paying the bills, doing the taxes and distributing the assets. If you and your sister get along well enough and you both inherit everything, you can probably skip the trust accounting. Don’t count on that, however, if there are other beneficiaries, especially family members who may think they ought to inherit more from your mother.

Can you do this on your own? Yes, in theory. It’s just like building a home. You could do it, but do you have the skills and knowledge to do it? People who read this and think, “But trusts are supposed to be easy” ought to understand that while trusts are less expensive and time consuming to administer than an estate in probate, it’s just as complicated.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or at www.lentillem.com. Len also answers legal questions each weekday, noon to 12:45 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.

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