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Trust Administration

The lawyers of HARTOG, BAER & HAND are sensitive to a client’s bereavement and his or her progress through the grief process. We seek to always keep in mind the client’s recent loss of a friend or family member when providing professional advice.

Probate and Trust administration is a challenging task. Complex problems arising from the interplay among the will or trust instrument, the probate code, and tax laws must be resolved by the trustee and the trustee’s professional advisors.

The death of the deceased spouse often requites the executor or trustee to create order out of uncertainty and ambiguity. The surviving spouse may consider much of the information required to be obtained as an unacceptable invasion of privacy. Unfortunately, the requirements of law and common sense compel obtaining this information.

In trust administration the typical nonprofessional trustee may be the surviving spouse, an adult child, a relative or family friend–someone other than an attorney or an accountant (or other professional) who specializes in estate planning and trust administration. Almost all nonprofessional trustees hire an attorney, usually but not necessarily the attorney who drafted the trust instrument, to assist with the trust administration process. When a California married couple together has established a family revocable living trust, the trust administration process begins upon the death of the first spouse to die. The typical living trust estate plan for a prosperous California married couple provides for the division of the family revocable living trust into several subtrusts upon the death of the first spouse.

After the death of the deceased spouse, the revocable living trust instrument typically calls for the establishment of three subtrusts: the Survivor’s Trust, the Bypass Trust, and the Marital Deduction Trust. The Survivor’s Trust will contain the surviving Settlor’s half of the community property, as well as any separate property owned by the surviving spouse. The Survivor’s Trust remains entirely revocable by the surviving spouse, and the survivor retains unrestricted control over the property in that trust. The Bypass Trust is intended to be funded with the applicable exclusion amount, the amount that the deceased settlor may transfer without incurring estate or gift tax. The Bypass Trust will not be taxed on the death of the surviving spouse. The Marital Deduction Trust is intended to qualify for the unlimited marital deduction from estate taxes. This Trust is often called a “QTIP” Trust. Choosing which assets to use to fund the several subtrusts is one of the major challenges faced by the nonprofessional trustee.

Stale Trusts: How Can We Freshen Them Up?
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Estate Administration Checklist/Questionnaire
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this is a fillable form that can only be edited with Adobe Acrobat or a PDF editing program.)

Delegation of Fiduciary Power Under the California Prudent Investor Act
—John A. Hartog
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Fiduciary Delegation of Investment Power Under the California Prudent Investor Act
—John A. Hartog
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A Trustee’s Crime and Punishment: Managing Fiduciary Liability Under the California Prudent Investor Act
—John A. Hartog
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Treading the Tightrope
—John A. Hartog
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What to Do with a Trustee Who Doesn’t “Get It”
—John A. Hartog
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Assisting the Nonprofessional Trustee in Implementing the Administrative Trust
—John A. Hartog
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Ins and Outs of the Administrative Trust
—John A. Hartog
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As the Trust World Turns
—John A. Hartog
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The Other Taxes: Property & Transfer Taxes: An Introduction for the Trust and Estate Lawyer
—John A. Hartog
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