How to select the right person?
If you are a trustee, or executor trying to prepare for eventual administration of an estate, you may have been advised by a close friend, CPA or attorney that it can be very important to hire an attorney to help administer the trust (“trust attorney”). Perhaps you’re not convinced that such a hiring is necessary (i.e., “Why incur the cost? I can do it myself!”) or you simply don’t understand the key benefits that a trust attorney can bring to the table. Let’s take a closer look at what a trust attorney does, why you may need one, and how to choose the right person to help you successfully administer the estate.
What does a trust attorney do?
A trust attorney can act as your critical guidance and support throughout your role as trustee. The duties and responsibilities of a trustee are outlined in the trust itself, as well as under California state law. It is the duty of a trustee to ensure that the decedent's will is followed after their death and that property is distributed according to the trust. Trustees must also be aware of both their statutory duties and restrictions, as well as those listed in the trust, in order to avoid violations. Otherwise, a trustee's acts could be determined as non-binding and may be disputed during the estate trust administration process, often resulting in trust litigation.
When needed?
Why does a trustee/executor need guidance? You may need to consider hiring a trust attorney for many reasons, including when:
- You require guidance in performing your duties as trustee, both in terms of the law in general and specifically as to the terms of the trust.
- You need assistance in properly notifying beneficiaries, handling documentation, and wrapping up the decedent’s financial affairs.
- Beneficiary conflicts are apparent, and a third party can mediate and ensure that correct procedures are followed.
- Protection from personal liability is a concern.
- Managing the assets of the trust is difficult and time-consuming, as well as a source of complaints by beneficiaries.
- The complexity of an estate is beyond your personal abilities to understand and manage.
- Compliance with tax laws must be identified and resolved.
The selection process:
How should you go about finding the right attorney to work with in administering the trust? Here are some important steps:
- Set a timeline for hiring, according to your personal situation.
- Compile a list of candidates. Ask friends who have served as trustees, talk to professional resources (e.g., your CPA, estate planning attorney, business attorney, life insurance agent, etc.), and perform internet research to identify a list of quality candidates.
- Review qualifications. This might include whether the attorney is a Certified Specialist in Estate Planning, Trust & Probate Law, number of years of experience, etc.
- Contact each candidate for an interview. Ask questions per your hiring criteria (see section below).
- Make a final selection. Narrow your list to no more than three attorneys, depending upon the attorney’s expertise/experience/reputation, your comfort level in working with the attorney, and rates, among any other factors that are critical to you. Evaluate all finalists based on the same factors and most likely one will rise to the top. If unclear, call the finalists to clarify any issues, then make your decision.
- Finally, if you are a trustor, help your trustee by finding and recommending a trust attorney before your demise.
Qualifying/Hiring Criteria
How do you select the right trust attorney for your specific needs? There are fundamental standards that any qualified candidate should meet, including:
- Proven ability to help trustee with all aspects of estate administration, including:
- Wrapping up the decedent’s financial affairs
- Filing legal notices and other documentation;
- Compiling the inventory and appraisement;
- Managing the estate;
- Distribution;
- and Filing tax returns.
- Specialized expertise (such as “Certified Specialist in Estate Planning, Trust & Probate Law” by the State Bar of California Board of Legal Specialization)
- Years of experience in many similar matters
- Reputation with legal colleagues
- History of satisfied clients
- Understands your needs and specific situation
- Responsiveness and attentiveness to your engagement
- Works with trustee to be fair and equitable to all beneficiaries
- Reasonable rates
In addition, you may have your own set of criteria, such as:
- Effective in day-to-day guidance, step-by-step directions
- Clear communication and terminology
- Do you feel comfortable working with them?
- Resolution-oriented (vs. litigation oriented) in handling disputes
- Experience in mediating disputes with beneficiaries
- No prior personal or professional relationship with any beneficiary
Specialized Estate Administration Expertise
The attorneys at Mortensen & Reinheimer, PC have extensive skill and experience in trust administration, allowing us to effectively guide the trustee. We are also skilled in California probate law and can ensure that a decedent's stated intentions are followed after their death. Please contact Mortensen & Reinheimer, PC at (714) 384-6053 to make an appointment, or use our online contact form. Our website is http://www.ocestateplanning.net.
About the author:
Tamsen R. Reinheimer, Attorney, is a Certified Specialist in Estate Planning, Trust & Probate Law (The State Bar of California Board of Legal Specialization). She has significant experience in all aspects of estate planning, trust administration, and probate. Contact Tamsen at tamsen@ocestateplanning.net