In the news there’s been a lot of criticism of court appointed trustees, especially those assigned for probate administration as well as conservatorships. Recent articles in the San Jose Mercury News took aim at court appointed Trustees and attorneys for taking advantage of their position in administering estates of incapacitated persons.
While the articles are slanted, somewhat biased and highlight extreme cases, there is one point that is absolutely correct. In my nearly 40 years of probate experience here in Santa Clara County, local judges are not going to allow trustees or attorneys fees unless they are “just and reasonable.” Our office regularly appears in the probate court. As such, our fees have been held by the Santa Clara Superior court to be “just and reasonable” in a variety of contexts. That’s more the norm than what was portrayed in the article series.
Even so, here’s some advice regarding attorney fees as it relates to estate planning and probate administration:
Flat & Hourly Fees Provide Certainty for Clients
Prior to having an attorney take on a case, we suggest negotiating a flat fee upfront whenever permissible. This agreement should be in place before any work begins. It allows you, the client, to budget accordingly. You’ll know what the case will cost. If you agree to move forward on an hourly basis, ask that your legal counsel periodically report where you stand. We’ve found this to be the best policy, as it leads to no surprises.
Estate Planning to Avoid Court Trustees
The best way to avoid problems of estate administration is to have an estate plan prepared before you need it. During the estate planning process, legal documents are drafted according to your wishes. You get to decide on what happens to your assets upon death. More importantly, you’ll make important decisions on your care should you become incapacitated. A well-crafted estate plan should include these types of documents:
- Living Trust Declaration & Agreement
- Last Will & Testament
- Advance Health Care Directive
- Durable Financial Power of Attorney
- Certified Abstract of Trust
Purely from a financial standpoint, a properly prepared estate plans avoids probate, a costly court process, as well as saves on taxes. From an emotional standpoint, an estate plan will ensure your wishes are carried out while eliminating potential family disputes.
Want to learn more about estate planning, we recommend the California Bar Association’s “Do I need Estate Planning” pamphlet. Of course, we’re happy to provide a free phone consultation to discuss your unique situation.