The WAY to WOW Shows
Parties to an Estate: Power Relationships
September 30, 2024
Automatically generated from YouTube captions; names and wording may contain errors.

[0:01] hello and welcome to trusts and Estates weekly I'm your host Kevin bemel and we're here every Monday at 10: a.m. Pacific time to talk about all matters relating to the creation and administration of trusts and Estates um the pro the probate process Etc so today I'm going to be talking specifically about the power relationships between between the various parties who are involved in the really

[0:36] more so the administration of a trust or a state than the creation so you know when a trust is created um often times the trustor or grantor or or plurals of those um that that is the people who are creating the trust also act as the trustees and so there's not a whole lot of change in in how things are handled especially if it's a case where for example it's a married couple and they're creating the trust to protect their assets and they create

[1:13] what's called an an intervivos trust or a living trust so this is typically revocable and so they act as trustees um and and really manage their own Affairs as they did before the trust was created so now that's obviously not not always the casee but once once the um uh grantor of a trust dies now that trust needs to be administrated and the same is true of an estate of property where there is no trust whether there is a will or not

[1:50] that estate is going to have to go through the probate process and so now the um Power relationships are are are going to change because the decedent is gone and um you know all that's left is is uh you know hopefully from Heaven the deedon is um you know looking down and saying um are my wishes going to be actually fulfilled right and so I'm going to talk about the various parties and their Authority and there is some uh there is

[2:25] some confusion about this I see this in my own practice where um lawyers tell their clients things that are just not the case um and in so doing they cause um dissension they cause confusion they cause extra expense uh to to the estate um you know to its its detriment so first off um are the is is the party who is going to be the administrator and I use that term broadly now so um in the

[3:04] case of a probate meaning there's a will or the person died in testate so either the will appoints an executive okay and and I I've I've mentioned this term many times in the past or in execute tricks if it's a female although you don't really hear um those gender specific terms used anymore or um if there is no will so the court will point an administrator and and that in in all cases that person not in all cases but I say in many cases that person is known as the personal representative of the

[3:41] estate so while um some jurisdictions use one term or another in general personal representative encompasses an executive or an administrator for that matter a special administrator and so I'm going to in general use that term I'm also gonna use that term when I mean a trustee even though technically a personal representative is court appointed and a trustee is appointed in the by by the the document that created the trust so

[4:19] and and just so I'm not constantly going personal representative or trustee or administrator or trustee just to simplify the language so again I'm going to use this this term personal represent resentative meaning broadly the person who is administrating the assets of an estate whether they're in a trust or not so the per the personal administrator has um typically very broad Authority so sometimes they will have authority over all the assets of the estate uh

[4:56] sometimes and in this case I'm speaking about a court appointed personal representative sometimes they will have um authority over only some of the assets of the estate for example all of the assets except real estate now part of that has to do with um what you know the various what the Court decides is appropriate for the administration of an estate it also has to do with whether the um whether the personal representative is needs to have a bond which in in most cases he will and so

[5:33] you know if you're talking about the management of a let's say a 100 million doll estate where $80 million of that estate is real estate so what the court may do is give the personal representative authority over everything but the real estate and therefore they only have to post a $0 million bond which that alone could you know easily cost $20,000 the premium on that bond for a year and and but but if they had if they gave the personal representative um authority over all the property

[6:09] including the real estate so now you're talking about a100 million estate the uh premium for that Bond could easily be $100,000 so again it just depends um and and it's certainly within the the personal Representatives authority to apply to the court for broader or narrower Authority based on what the personal representative thinks will work the best for the particular situation um now a trustee will

[6:46] typically have very broad Authority will have authority over all the assets of the trust and oftentimes the terms of the trust will wave the requirement for a bond so it's assumed that the and and and after again assuming it's a case where the trustors were the trustee and now they're they're deceased and so a successor trustee has stepped up to administrate the trust so generally it's assumed that that person uh having been selected to be the successor trustee uh

[7:22] by the the trustors the grantors so that person is trustworthy enough not to to require a bond also typically the trustors don't want to burden the estate with the cost of a bond and so and so they you know they will there will be a waiver of Bond as a ter as a term of the trust okay but a a trust too by the way um can limit the authority of the trustee again typically it will not typically there will be a recital or I shouldn't say a recital because that

[7:57] that has a specific legal definition but there will be a list of authorities that the trustee has and typically they're broader than what the trustee would need in order to administrate the assets of the trust okay but again I've been in situations where it seemed like I needed every single Authority that was given to me as trustee because of the various problems that arose in dealing with the various assets and the various situations and so

[8:32] um that's why these trusts tend to write the authority of the trustees very very broadly to make sure that they can as efficiently as possible fulfill their their duties okay so um in general those Duties are collect the assets identify the debts pay the debts and then distribute the remaining assets asss to the beneficiaries okay and that's true of both uh a probate and and a trust that's that's essentially um the the

[9:09] what what the you know they have power the the personal representative has power to do okay now within that there can be a lot of nuances so let's say for example the estate owns a business or the trust owns a business well so the personal representative is going to most likely have the authority to run that business or hire people to run that business depending on whether the personal representative has the experience uh in that particular

[9:44] business okay so if you've got a a a personal representative like like me whose background is real estate and you know there's a business owned by the estate it's a um I don't know it's a a trying to think of a business I I don't have any experience running at this point in my life um I it's you know it's a medical it's a it's a medical business okay so um the trustee might not run that business directly but might bring someone in to run the business if the decedent was the person running the business now if the

[10:20] decedent was already out of the business but still owned it so then most likely the trustee will just oversee um the people running the business to to make sure everything is going smoothly and and operating and the business is maintaining its value and you know kind of Dos VI as we say um just let things go from there now when it comes to relationships this this is one of the things that is I think oftentimes misunderstood so when an estate is in Probate or is still held by a trust okay

[10:58] it is not owned by the beneficiaries okay they are not the legal owners the trust or the estate is the legal owner of those assets so the beneficiaries stand to benefit from that and I'll I'll talk about beneficiaries in a few minutes but they do not own any of that property and they do not have decisionmaking authority over it in fact the personal representative has sole decision-making Authority

[11:33] especially if the personal representative is a trustee um and if the personal representative is an an administrator and a probate then that Authority is subject to oversight by the Probate Court okay so talking about a trust again for a minute trusts often times will even have a provision that says says if the beneficiaries challenge the trustees actions they can be disinherited okay again I I have a

[12:10] situation like that that I'm dealing with um right now and so the idea is to give the the trustee not just the broadest power but also the power relationship okay so although a trustee must administrate a trust for the benefit of the beneficiaries okay it is often times in the trustees sole discretion to determine what that means

[12:45] okay and the beneficiaries have only very very limited ability to have any impact on that okay now the same is generally true in a probate so the personal represent resentative it's really in the personal representative's discretion to make decisions about the administration of of a of an estate now there may there there typically will be a lawyer involved but the lawyer actually represents the personal representative not vice versa okay so again although

[13:22] the lawyer will give advice and and the lawyer will talk about you know the legal issues and consequences of particular decisions the lawyer does not have the authority to make the decisions we'll talk about that more later so the only check and balance on a personal representative in a probate is the court itself okay and and and again we'll we'll talk about the court as well so um if the uh beneficiaries in a

[13:57] probate or two probate I should say beneficiaries to an estate that's in Probate think that the executive the personal representative is Mis administrating the estate they have the authority to apply to the court essentially to have that personal representative removed but that's really the only Authority that they have okay they they don't have authority over individual decisions and likewise um in a trust the beneficiaries may have

[14:33] the ability to to challenge the trustees decisions although oftentimes not um but as a final as a last resort they can go to court and ask that the court remove the trustee and replace the trustee with somebody else okay how how all that plays out um has you know has you know is is a very individual issue okay but that's that's in terms of day-to-day administration of the trust beneficiaries have no have have no say

[15:09] now one more thing about these power relationships a a smart personal representative will communicate with the beneficiaries and understand what their um you know wants and needs are and potentially take them into the into account to the extent that they conform to a proper administration of the estate same is true with a trust so uh an intelligent

[15:44] trustee will communicate with the beneficiaries understand their point of view and to the extent that what the trustees want also conf forms to the best interests of the the administration of the trust or the I should say the proper administration of the the trust so then there's no point in causing needless conflict um just to do something different than what the the beneficiaries want okay so it's not that

[16:20] the the personal representative is prohibited from communicating with the beneficiaries or soliciting their their thoughts their like I said their wants their desires that would be best practice to do so it's just that when it comes to out andout power the power rests with the personal representative not the beneficiaries okay now I've been talking a lot about beneficiaries so I'm gonna I'm gonna address them next which is so the beneficiaries are the individuals or

[16:55] you know entities organizations that are going going to benefit from receive the remaining assets from the estate or trust okay that is the assets left after um debts have been paid okay now they have um very as I was as I've been saying they have little direct power on the administration of the estate or trust okay they hopefully the the personal

[17:30] representative is knowledgeable knows what he's doing and recognizes that it's in everyone's best interest for him to be in regular communication with the beneficiaries and to solicit their input okay that'll that goes a long way toward avoiding disputes and and disputes that can be very hard emotionally as well as financially on the administration of the estate okay so the beneficiaries may have influence but not power okay so they can't dictate

[18:08] but they can uh Express um their their point of view they can discuss things with the trustee or with with the personal representative and now if you are a beneficiary or if you end up being a beneficiary I I would recommend number one that you seek to establish a good communicative uh relationship with the personal representative a cordial mutually respectful relationship okay and and it's it's to your it's in your best interest to work

[18:44] to do that as well so if you are inordinately demanding if if you make unreasonable requests okay that that's that's not going to help you out either in the short run or most likely in the long run okay especially if the personal representative um starts to think that that you're looking to ride rough shot over him and usurp his authority and especially if you think if he thinks you're putting him in a situation where he could be breaching his fiduciary duty

[19:21] okay so understand that uh a personal representative whether it's in in a probate or in the administration of a trust acts in a fiduciary capacity so unless you have grounds to uh to submit to the court that that fiduciary duty has been breached it is unlikely that um that that applying to the court for removal of the personal

[19:56] representative is going to be success ful the fact that the personal representative will not do what the beneficiary requests or demands does not constitute a breach of fiduciary duty okay um it it it merely it it could merely be just a difference of opinion and especially if the personal representative is very knowledgeable about financial matters and the beneficiaries are not not it's likely going to be assumed or not not assumed

[20:32] but the court is likely to decide that in fact the the personal representative is handling things properly and discount the beneficiaries um you know complaints okay so when when we talk about the power that a beneficiary has that power really comes down to being able to go to Court to have the personal representative replaced and and again it's most likely to happen only in a

[21:07] situation where there's hard evidence that the trustee has breached his fiduciary duty okay beyond that um influence but but no power okay and and this is um th this is really the the Crux of the matter and so I stress again that it is in the best interests of all parties uh to to maintain cordial Cooperative relations this is true between the personal representative and the

[21:43] beneficiaries and it's true between beneficiaries as well so if beneficiaries start fighting over who's entitled to what and and and they start challenging each other's rights in court um and and the uh the personal Representatives authority to act as as as a a sort of referee between the various beneficiaries typically that ends up being extremely costly and and the people who lose out in the end are the beneficiaries themselves because keep in

[22:19] mind the assets of the estate go to the beneficiary so the more that more of the assets that have to be spent on court activities legal cost for lawyers cost for filing of documents payment to the personal representative payment to experts whether they're appraisers or accountants or whatever all of that reduces the assets that are available for the beneficiaries to receive through the trust or at the closing of the probate okay all right so that's the beneficiary that's that's their their

[22:54] role and you know again limited power okay next are creditors so as the term States creditors are people to whom the estate or the trust owns money now not all people who claim to be creditors are necessarily Bonafide creditors so in a probate there is a period of time specified by the probate code for each state during which um

[23:29] creditors have to be notified that you know a decedent has died and and and the estate is now in Probate and when those creditor claims have to be filed okay so here in California I believe it's 90 days if memory serves okay once that once 90 days after notification has passed I'm just using 90 days as an example it it it can vary from state to state but once the notification once the period post notification for for creditor claims to

[24:04] be filed has passed okay those creditor claims may not be recognized and in fact um the personal representative may not be able to pay them it could be a breach of his fiduciary duty to pay a creditor claim that was not filed on a timely basis okay and and again this is where some disputes can rise so let's say that um you know uh death

[24:41] of of a decedent was given uh today which is what September 30th okay and and the law requires that uh that the creditors have 90 days to file a claim so that would basically be until the end of the calendar year okay so and let's say a creditor didn't file a claim until mid January that somehow they I don't know they it fell through the cracks or they just you know didn't get their act together Whatever Whatever

[25:16] Happened okay so it may very well be that the the personal representative can no longer pay that uh that that debt now the Creditor made turn around and claim well I didn't get notice on September 30th even though that's what the personal representative is claiming and so therefore the window is enclosed and therefore this is a valid claim so again this is this is most likely going to be an issue to be resolved by the court and

[25:51] so now there's going to be loyers and and the personal Representatives time etc etc okay so if you are a creditor to an estate be aware that there are deadlines for filing your claim and and be on top of those deadlines okay so if the proper procedures have been followed by the personal representative and the lawyer that's assisting him uh the court can you know definitely for prevent the payment of the claim and in

[26:26] fact this could be a a situation where the beneficiaries if the claim was paid um wrongly by the personal representative the beneficiaries could claim indeed that was a breach of fiduciary duty and have the personal representative removed because now assets have been wrongly um paid out of the estate and so the beneficiaries are losing out and so now there'll there'll have to be an action to reclaim those assets from the Creditor etc etc okay

[27:01] now uh so creditors generally have power just to the extent that they have a properly filed claim on the estate okay beyond that they don't have a whole lot of power okay now assuming they have properly filed their claims so then they're going to have the court to back them up in getting paid uh and getting that that claim paid and so um the court part of the Court's responsibility is to

[27:37] see that that just debts are paid okay but that's not the that's not power in the hands of the Creditor per se that power is actually in the hands of the Court that's why it's so important to have creditor claims timely filed now if a creditor if a creditor has a claim against to trust so that claim is going be is going to be handled by the trustee according to the terms of the trust now in many cases um the the first of all

[28:12] there's no creditor claims process in in in the administration of a trust because often times um let's say there's a loan on a property okay so oftentimes that loan is going to survive the administ ation of the trust and it's going to continue to be a debt against the property when that property is distributed to the beneficiaries again it depends all of these situations uh you know have their own sort of unique parts and so it just it really just depends but but in

[28:47] general um the administration of of of creditors in a trust is much simpler than it is um in in a probate so there's typically not a a claim a period during which claims have to be filed that that sort of thing okay now let's say that a trust has a debt that um has a a clause in it that says it can be called on death of the trustor well so in that case then you know the trust is going to have to pay that debt okay I'm sorry the trustee is going to have to see to it that that

[29:23] debt is paid uh by the assets of the trust so that's where you know there's this many different situations as there are trusts and lenders and and Trust stores Etc so but in general because a trust is not subject to court oversight so these things can be handled more easily okay so so that's that's creditors again they don't have a whole lot of of power um but but they they do have the the ability to make a valid claim against an estate and and then you

[29:58] know the court will see to it that it's paid okay next are attorneys Andor estate planners really estate planners have have no Authority at all in the administration of an estate um they may be called upon for clarification of something um but they have typically no standing in the court they have no standing in a trust you know they were an advisor that helped um the decedent or the trustor set set up their you know how their estate was going to be handled at their

[30:33] death but they don't have any power um at at all now attorneys as I mentioned earlier they are in an advisory capacity so again they do not have the authority to make decisions about the administration of the estate or trust they are there to in the case of a probate represent the personal representative in terms of legal matters and provide legal advice um and in the case of a trust they're also there just to to see to it that the trustee is complying with the

[31:11] terms of the trust and not violating his fiduciary obligation in the case of a trust a lawyer has no obligation to report anything to a court again they their Duty they are actually the trustees lawyer okay they're not the trust s lawyer okay they're advising the trustee and their duty is to the trustee generally speaking now a smart personal representative will listen to the advice of of his lawyer and and especially if

[31:48] they're not particularly experienced you know in many cases um follow the advice of the lawyer especially if the lawyer is much more experienced than they are and if you are an inexperienced personal representative you are well advised to make sure that the lawyer that you use is very experienced because there can be a lot of nuances about how things happen about how things should be done and that lawyer can number one keep you out of trouble and number two help you save the

[32:25] estate or the trust a lot of money by showing you the path for getting certain things handled in the most efficient way so not unlike the beneficiaries okay the lawyer has the ability to give advice uh again a smart a smart personal representative will consult with the lawyer on a regular basis have a good working relationship with the lawyer but the lawyer does not have any power to make decisions nor does the lawyer have the power to

[33:01] challenge the personal representative's decision in court because the lawyer represents the personal representative now beneficiaries sometimes will hire their own lawyers okay and just like it's a good idea for the personal representative to have a a good cordial working relationship with the beneficiaries and with his own lawyer other lawyers get involved representing the beneficiary at that point the um the personal Representatives lawyer should create a

[33:38] good working relationship with the beneficiaries lawyers because the beneficiaries lawyers can advise the beneficiaries to challenge the uh the conduct of the personal representative in court whether it's a uh you know an administrator in an estate or whether it's the trustee in a trust okay so so again the the beneficiaries lawyers they do they themselves do not have standing to challenge what the

[34:13] personal representative is doing but they can advise the beneficiaries to take action and in so doing have a lot of influences to whether that happens and so they they their power I use that term loosely now comes from the influence the amount of trust that the beneficiaries may have in them and also they will have some indirect influence on the personal representative to the extent that they uh are able to convince the personal

[34:49] Representatives lawyer that they have good arguments or they have they have facts to support what it is they're asking to have happened Etc okay so these are you know these are the interplay of the various relationships of of a trust I mean of the administration of an estate or the administration of a trust and it's always best for people to work things out cordially if possible um but but that doesn't you know

[35:24] um but that you know unfortunately that doesn't always work that that's kind of the bottom line but that should be the goal okay so again attorneys have influence but they have no real power in the situation so the other party if you will not really a party per se but the other party I'll use the term loosely that has a lot of power in the administration of an estate though typically not a trust is the probate court now we speak of the probate Court as as a place but the

[35:59] Probate Court really comes down to the judge and it can be um you know how how the power of the probate court gets wielded will depend largely on the judge but also and this is very important it will depend on the Court's Clerk and the probate attorneys who work work for the Probate Court who are advising the judge okay so while we tend to think of

[36:35] the Court as being the judge there are other individuals within the Probate Court who actually can wield a considerable amount of authority even though technically it's not theirs they're wielding it on behalf of the judge or because of the way they it can INF influence the judge okay so let talk about for a moment the role of the Court the role of the court in the administration of an estate and again this doesn't apply to a trust the purpose of the trust is to avoid probate

[37:10] court so the role of the court is to oversee the administration of the estate and make sure that it's conducted in accordance with probate law in in the particular state in which the probate is taking place okay so um essentially they have oversight of the personal representative and depending on what needs to be done to administrate that estate the personal representative will Peri not periodically uh from time to time petition the court for approval of

[37:46] certain actions or for a certain authority to do a certain thing or for you know distribution of a property either an interim distribution or distribu of the assets when the when the probate closes Etc okay now the court is supposed to be a neutral party in the administration of the estate meaning the court shouldn't be favoring either the personal representative or any of the lawyers or the beneficiaries right the

[38:22] court is supposed to be neutrally applying the law haha right I mean we want to think of Courts as neutral but oftentimes courts have their own agenda and so um I can tell you again from personal experience the idea that the court is is there to facilitate the administration of the estate so as little money as possible is used in the administration is is clearly not true so I've been in situations where it

[38:57] appeared that the judge's sole goal was to clear his calendar okay so um I recently had a situation where there were uh 31 cases on the judges docket and um of those only four or five I think it was actually made any progress and the rest were postponed for uh one two three almost four months okay in order to just get through the cases

[39:32] as quickly as possible right that was clearly the goal of the judge now you could say well 31 cases that sounds like a lot and indeed it it was a lot okay um the fact of the matter is this particular court is uh underst staffed based on what I've seen and and so judges are trying to handle too many cases okay now if you ask me the proper way for that to be handled is for the judges to say to the pr presiding judge um look there there's just there's not enough of

[40:08] us to properly handle these things we are costing Estates a lot of money by continually continuing in other words putting off to a later date the resolution of matters or the hearing of matters Etc because you know I can only you know hear a lawyer you know for two or three three minutes uh give you know thoughts on on what ought to be done um and that's that's not good for the system but but that is how this particular court Works um however having said that um you know some judges um do

[40:46] not have what I would call sufficient humility in the exercise of of their Authority so I I'm talking about another matter um it's a the judge is Young and uh you know I think she really likes being able to wield her Authority against lawyers who are significantly older than she is so you know um it's it's unfortunate um and it shouldn't happen that way but that just is it how it happens um and and it's it's a reality of the probate court now um what

[41:23] can be done about it well you know complaints can be leveled against judges um there are you know boards that oversee their conduct if if something a judge does is particularly egregious the decision can be appealed although that is costly okay and so in the end result the judge is very very powerful and there's another factor that goes into the power that the court has and that is the attorney who is advising the per personal representative May

[41:58] may not May often times um is handling matters knowing that he may have to handle another matter in front of the same judge down the road and so he doesn't want to get on that judge's bad side okay so you you may have a personal representative who this is the only estate that personal representative will ever handle whether the judge likes the personal representative or not is immaterial to the personal representative okay nonetheless the lawyer may be counseling uh

[42:36] moderation um because you know he's concerned that if he really gets the judge mad that in a future matter he'll have more there will be more difficulties in administering that one because the judge doesn't like him now you you you could say well wait a minute the judge is supposed to be neutral I thought you just said that of of course but judges are human beings um they have their uh their their things if you will and and you know it can be very very difficult to prove that in fact a judge is acting with animist toward a

[43:12] particular party a particular lawyer and so all that's happening is for some reason you know your decisions on your probate keep getting put off and it keeps going on and on and on and you're not able to make practice you're not I'm sorry you're not able to make progress and and but but you know you can't tie it directly to animus on the part of the judge so that's that's just a difficulty uh and it's it's one of the it's another factor that sort of enhances the power of Judges is the same lawyers practice in front of

[43:49] them uh on a regular basis in many cases now I've talked about other parties that have authority um and I and I I I I I use that term in that case somewhat Loosely because again their Authority comes from the judge so the clerk of the court can have uh can have a lot of a Authority in certain cases so if they don't think that a case is ready to be heard for some reason they can have the case

[44:25] continued okay and and again you have the same Dynamic with the judge that you do with the clerk so attorneys oftentimes are reluctant to um get a clerk angry at them because they may have to have another matter heard in the same court where that clerk is the clerk and now the clerk May bear them animous and it could be detrial to that next case so often times the lawyers will will uh you know go along with what the

[45:00] clerk is doing even if it's somewhat or even very unreasonable in in in order not to create problems down the road and clerks know this and so some clerks will take advantage of it even though uh the their judge may not strictly dis may not strictly agree with what the clerk is is doing so if the clerk has a good relationship with with his judge uh and the judge is you know very likely to defer to the clerk's uh

[45:37] judgment so then the clerk is going to wield quite a bit of authority even though it's not really the clerk's Authority it's the judge's Authority now I mentioned this other party in or other sort of aspect of the probate court it's called a probate attorney now we talk about the category of prob attorneys often times what we mean are attorneys who are representing personal Representatives but I I I know here in the courts in California we have probate attorneys who work for the court and what they do is they review cases uh for

[46:14] upcoming hearings and advise the judge on whether all the documents have been filed uh whether there are any is there's anything missing and uh you know what the the what the law May how the law May apply and in many cases they will make a recommendation about what the judge should do now it's it's an interesting dynamic because the the probate attorneys who work for the court they do not have the power to make a decision so they don't have any real Authority their

[46:50] Authority in in the same way as the clerk comes from the relationship they may have with the judge and how willing the judge is to agree to the probate attorneys they're called Pas for short the PA's recommendation now just like with an inexperienced personal representative they should have an experienced attorney advising them to help them do the most efficient job the best job administering the estate you would think that a judge who's relatively new to the bench would

[47:26] want a pie PA who's very experienced and would give very serious thought to following that PA's recommendation this is where judicial humility is an important aspect of of a judge's character so uh again from my own experience um i' I've got a case with a judge who's relatively new to the bench and we we had a petition heard in front of her and her pa uh recommended

[48:02] that the petition be granted um and she was ended up being undecided on it that was the best we could do she was she was inclined to deny it and in the end we convinced her that she should actually read the file which she hadn't done you know prior to the hearing which is a whole separate issue okay so these are some of the problems with um the probate process and in fact I've got a a a a show that I'm going to be that's scheduled uh upcoming to talk about some of the

[48:38] problems in in how the probate system works um but in but in any event the the Pas the probate attorneys who work for the courts again they don't actually have power their whatever Authority they have really comes from the degree of influence they have over the judges for whom they work okay but in the end the court in the case of a probate pretty much has the ultimate power because they can overrule things that the personal representative wants to do or can

[49:16] overrule something that the personal personal representative has done and can even remove the personal representative from that role okay and so and and the reason is the the probe court is there to protect um the interests of the creditors and the beneficiaries um to see that you know they're not cheated in essence okay so um the again the the two real Power Players if you will in in a in the administration of an estate are the personal res personal representative be

[49:51] it an administrator or a trustee and the court okay that's that's where the you know things get essentially get worked out uh well I should say I'm sorry let me let me rephrase that between the personal representative in a probate and the court okay that's where the power lies in a trust the power lies with the trustee okay beyond that um the beneficiaries and and the and their lawyers through them may have not may

[50:26] they have the ability to challenge decisions made by either a an administrator or a trustee in court um although typically those challenges have to be a breach of fiduciary duty because the the personal representative acts in a fiduciary capacity that's why here in California we have a professional fiduciary's license that um people who like me who routinely uh administrate Estates we have to have that that license okay and beyond that creditors have the power to timely file claims in

[51:04] a probate beyond that not a whole lot of not a whole lot of authority okay so that's how the power relationships play out and it's important to recognize these so um I mentioned at the beginning um oftentimes not oftentimes but sometimes a misunderstanding of these power relationships cause problems so I have a situation where a lawyer has told a beneficiary that in the end he has the authority to make decisions that's not true okay that's not true um you know in

[51:41] this particular case I confer with the beneficiary on a regular basis and you know I I I work to take his wishes into account but he does not make the decisions nor does he have the power to make the decisions I do and that's as it needs to be because in the end I have sole responsibility for those decisions so if I make a decision that turns out wrong I can't say to the court well I was just doing what the beneficiary wanted me to do because the Court's answer will be well that was stupid of

[52:17] you because the beneficiary has no authority to make decisions so you can't blame a bad decision on the beneficiary because you're the one who has the Authority okay or you're the one who has the power all right so it's very important to understand these power relationships hopefully this has given you some some clarity some insight into that and will help you in the administration of an estate or trust Help It Go much more smoothly so thanks so much for joining me today and uh let's see tomorrow at 10:00 a.m. Pacific

[52:55] time is my show business lessons from the military and my topic is I don't remember okay oh so my topic is adapting to change I'm gonna be talking about uh General John persing and how he handled his um uh fighting at during the Border war against Poncho via um versus what he did in world War one and to talk about this idea of adapting to change and then

[53:31] on Wednesday at 10:00 a.m. I'm GNA be for my show people making money by the way these are all uh Pacific time I'm gonna be talking about building routines for Success so I'm I'm I'm gonna be talking about a book called The Power of Habit by Charles DG one of my favorite books it's an absolutely outstanding book and it really points the way to how we can build what I what I'm calling routines for success and then seven days from today I'll be back at 10: a.m. Pacific time for the next edition of

[54:09] trust in Estates weekly so once again I thank you for joining me today wishing you a wonderful rest of the day and signing off as I always do Marie darling you are my best