During their lifetimes, the creators of a revocable living trust (also known as Trustors, Grantors, or Settlors) are typically the ones administering the trust. As the party in charge of administering the trust, they are also known as the Trustee. While the Trustor is competent and alive, administration is typically very informal. More often than not, the Trustor may not see or experience any difference in life prior to, or after, the creation of the trust.

Obstacles

It's important to remember the steps needed to ensure that the trust will help the Trustor achieve the estate planning objectives--usually probate avoidance and that beneficiaries are properly provided for.

Some of the biggest stumbling blocks faced by Trustors is the failure to properly re-title assets in the name of the trust and updating beneficiary designations on assets such as retirement accounts and life insurance policies so that they can be distributed without the need for probate. Because of the technicalities involved, an estate planning lawyer often provides guidance to the Trustor on how assets should be dealt with to avoid probate.

Other Considerations

All income of a revocable living trust is reported on Trustor's personal income tax returns. In addition, while a Trustor of a revocable living trust is also the Trustee, no other beneficiary of the trust has the power to compel the Trustee. California Probate Code Section 15800 provides as follows:

Except to the extent that the trust instrument otherwise provides or where the joint action of the settlor and all beneficiaries is required, during the time that a trust is revocable and the person holding the power to revoke the trust is competent:

(a) The person holding the power to revoke, and not the beneficiary, has the rights afforded beneficiaries under this division.

(b) The duties of the trustee are owed to the person holding the power to revoke.

One of the beauties of utilizing revocable living trusts in California is that for all practical purposes, the creator experiences no change in day-to-day life. The primary hurdle is to ensure that assets are properly titled in the name of the trust; however, this is typically a one-time event that is taken care of at the time of the creation of the trust. Once the trust is in place, a Trustor should take care to ensure that subsequently acquired assets are placed into the trust, as appropriate.

The revocable living trust is considered by many practitioners to be the central document in modern estate planning for individuals in California. As you may already know, the assets held in a valid revocable trust pass without the need for the time and expense associated with probate. Thus, in many people's eyes, using a revocable living trust renders all of the benefits of a Will, without the downsides.

The trust document is the "instruction manual" that your successor Trustee (the person or corporate entity who you've put in charge after you become incapacitated or die) will use to manage and distribute your assets. Generally, the successor Trustee will be one or more individuals or corporate entities that you specifically name in your trust to succeed you. However, even if the successor Trustee you've named is unavailable or dies, the California Probate Code provides a statutory framework to resolve such issues. Specifically, California Probate Code Section 15660 provides:

(a) If the trust has no trustee or if the trust instrument requires a vacancy in the office of a cotrustee to be filled, the vacancy shall be filled as provided in this section.

(b) If the trust instrument provides a practical method of appointing a trustee or names the person to fill the vacancy, the vacancy shall be filled as provided in the trust instrument.

(c) If the vacancy in the office of trustee is not filled as provided in subdivision (b), the vacancy may be filled by a trust company that has agreed to accept the trust on agreement of all adult beneficiaries who are receiving or are entitled to receive income under the trust or to receive a distribution of principal if the trust were terminated at the time the agreement is made. If a beneficiary has a conservator, the conservator may agree to the successor trustee on behalf of the conservatee without obtaining court approval. Without limiting the power of the beneficiary to agree to the successor trustee, if the beneficiary has designated an attorney in fact who has the power under the power of attorney to agree to the successor trustee, the attorney in fact may agree to the successor trustee.

(d) If the vacancy in the office of trustee is not filled as provided in subdivision (b) or (c), on petition of any interested person or any person named as trustee in the trust instrument, the court may, in its discretion, appoint a trustee to fill the vacancy. If the trust provides for more than one trustee, the court may, in its discretion, appoint the original number or any lesser number of trustees. In selecting a trustee, the court shall give consideration to any nomination by the beneficiaries who are 14 years of age or older.

As you can see in part (d) above, even though probate may be avoided by using a revocable living trust, the beneficiaries may still use the court system to assist in matters such as appointing a trustee of a trust.

Another reason people may gravitate towards use of a revocable living trust is the relatively private nature of trust administration. Because probate is a court proceeding, the open public can get access to whatever may be filed in a particular probate. While trust documents must be disclosed to beneficiaries under certain circumstances such as when the creator of a trust passes away, that is the exception and not the rule.

At the end of the day, the time delay and cost associated with probate proceedings is often enough to convince people of the necessity of utilizing a revocable living trust.