Family trust but probate (informal or formal?) needed (Based on @ohwillieke's answer, I've updated this to clarify the facts) Family trust: was set up by parents as a revocable living trust. had "upon death" instructions to transfer all to beneficiary #1 (B1), or if B1 was dead, then divide among B2, B3, etc. per the land abstract from the county recorder's office, shows (a) family trust recorded on MMM dd, yyyy with the trust itself as Grantees, and (b) a quit claim deed recorded a few days later with parents (not trust) as Grantors. Real estate appears to be the only asset recorded, ever. Upon each parent's death, their wills were poured over into the trust to handle non-real-estate assets (autos and such), and B1 received everything. (Not sure if the wills of either parent were ever recorded when they died, but maybe that's moot). B1, who was also a trustee, eventually died and left the home and belongings (cited in the parents' pourover wills) in the trust. B1 wrote their last instructions on their own; no lawyer or witnesses involved. It was typed but in great detailed, was hand-signed and dated, and there is ample extrinsic evidence to show B1's intent. Indeed, B1's instructions were essentially the same as in the trust: I'm dead, divide everything among B2, B3, etc. So, B1 owned the home and kept it in the trust. The value is more than allowed for a small affidavit, but that is apparently moot anyway because the home remained in the trust. Yes? B1's bank accounts and insurance polices were ToD (nonprobate). B1's probate assets were very old car, very old furniture, very old etc., certainly worth less than $42K. Some of the current beneficiaries are also co-successor trustees. The home will be sold. There are no family disputes to settle. All known creditors have been notified. Can this situation be handled via an informal probate (possibly under the guidance of a lawyer), or does it have elements that require a formal probate? Based on @ohwillieke's answer, it appears that, an informal probate may be all that's needed, if that.
Short Answer If everything was set up correctly in the first place, it is probably unnecessary to open up either an informal probate case or a formal probate case, although it may be necessary to prepare a small estate affidavit. But, there aren't enough facts in your question to know for sure. There are also a couple of documents that have to be filed or recorded with regard to the trust, but those documents aren't part of either a formal probate or an informal probate. If there is a will, however, (and it appears that there is) it needs to be lodged with the court even if there is no formal probate and there is no informal probate. You Are Almost Surely Confused About The Facts Family trust was set up with: a quitclaim deed transferring the home into the trust, and a parent's pourover will that left the home first to a single beneficiary, and second, if that beneficiary died then to other beneficiaries. If it was set up this way, somebody made a serious mistake. (Your mention of a holographic will worries me because it suggests that somebody didn't use a lawyer to set this up in which case they probably screwed it up.) But, I suspect that you misunderstand the situation. Normally, you would set up a revocable trust (also known as a &quot;living trust&quot;) and quitclaim the home into the trust, and use a bill of sale to transfer all tangible personal property into the trust, and title all bank accounts and investment accounts in the name of the trust. Then, the provisions of the trust (not the will) would say which beneficiary received the trust's assets. Assets in a trust are governed by the terms of the trust and the terms of any will are disregarded with respect to the assets in the trust. A pourover will, by definition, is a will that leaves any property that is not in the trust on the date of death to the trust (which ceases to be a revocable trust and becomes an irrevocable trust upon the date of death). A pourover will is only used if there are assets on the date of death that are not titled in the trust and that do not pass by another non-probate transfer (i.e. a beneficiary designation or a joint tenancy with right of survivorship or a lifetime transfer to a beneficiary before death or property in a trust created during life). A will has no authority to direct the disposition of property that passes via a non-probate transfer. Instead, a will only applies to probate property. Probate property is property owned by the dead person which does not have a beneficiary designation or survivorship provision and is not in a trust. Lodging The Will If there is a will, it must be delivered to the court of general jurisdiction in the county where the person who died resided by the person who is in possession of it, within a certain number of days after the death of the person who wrote the will, even if there is no need for a formal probate or an informal probate, and even if the person who is in possession of the will doesn't know if it is valid or not. When Is Probate Required? Possibility One: There Is No Probate Property Ideally, all property would be in the trust as of the date of death. In that case, there would be no probate (informal or formal), because property in a trust is one kind of property that passes via a non-probate transfer. All property that does not pass by a non-probate transfer is probate property. Possibility Two: There is no probate property which is real estate and all of the probate property combined is worth $42,000 or less. If there is probate property, then you have to determine if a probate proceeding, either formal or informal, is required, or if instead probate can be dispensed with entirely. If the total amount of probate property is less than the amount of the exempt property and family allowance amounts under the probate code (Title 75 of the Utah Statutes) (which is $42,000 as of 2010, although it appears from the Utah State Legislature website that this has not changed since 2010), and there is no real estate that is outside the trust, then the probate property may be transferred by a small estate affidavit of the person named as personal representative (PR a.k.a. executor) in the Will without opening up an informal probate or formal probate, if all of the people whose consent is necessary to make the transfer (such as the DMV for a car, or a bank handling a final paycheck or tax refund) will accept the affidavit in lieu of letters testamentary. If a small estate affidavit is sufficient to transfer all of the probate property in this situation, then there is no probate proceeding, formal or informal. Possibility Three: There is probate real estate, or there is probate property worth more than $42,000, or someone in control of probate property refuses to accept a small estate affidavit. If there is real estate outside the trust, or if the total value of the property outside the trust that does not pass by non-probate transfer is worth more than the combined exempt property amount and family allowance (i.e. if it was more than $42,000), then you must probate the will, either formally or informally, and have the PR appointed by the court registrar. Then, as PR, the PR can transfer all of the probate property to the trust and close the estate. The only time that a will can have any validity, in the absence of an informal probate or a formal probate, is when the estate qualifies for a transfer by affidavit. And, in practice, lots of third parties other than the DMV will balk at accepting an affidavit, so it is usually easier to simply do an informal probate, than it is to bother with an affidavit. Formal v. Informal Probate When Probate Is Required Informal Probate An informal probate is very easy, although you should still have a lawyer at a minimum assist you in filing it and in closing the estate when you are done. There are standard court forms to commence an informal probate that are mostly pretty straightforward to fill out, and once the forms and original will are delivered to the court of general jurisdiction where the person who died resided the clerk in charge of probate cases called the Registrar reviews it and if everything is in order, immediately stamps them and gives the PR his or her &quot;letters testamentary&quot; (that give the PR the authority to transfer the property to the trust) without holding any hearings or even talking to a judge. An informal probate is only allowed if there are no disputes in the case regarding the validity of the will or the appointment of the person named in the will to be the PR. An absence of dispute is shown in an informal probate by having everyone with a right to dispute the will or the PR appointment sign a consent form which is included in the package of forms submitted to the court in an informal probate. The letters testamentary issued to the PR in an informal probate expire when the probate case is closed, which is done by filing a one page court form with the court that certifies that all of the probate assets of the person who died, and all of the debts of the person who died, have been taken care of by the PR. A case that starts out as an informal probate can be converted to a formal probate if after letters testamentary are issued by the registrar in the informal probate (which often happens the same day that the case if filed), someone contests the will before the case is closed. When that happens, everyone starts over from scratch to determine if the will is valid and if the right person was appointed as PR, but in the meantime the person appointed informally continues to act as PR in a caretaker capacity (without making any distributions to heirs or devisees) until the validity of the will and the validity of the informal appointment of the PR is resolved. Formal Probate A formal probate is only necessary if (1) there is a dispute regarding the validity of the Will, or (2) regarding the person entitled to be PR, or (3) if the Registrar (i.e. the clerk of the court in charge of probate matters) in the Registrar's sole discretion feels that it doesn't smell right and refers it to a judge. Realistically, formal probates are only brought when (1) there is a bona fide dispute over the validity of the will or (2) when someone with a right to contest the will can not be located to sign off on a consent or can't be bothered to sign and return it. When probate cases are filed they are filed formally maybe 5%-10% of the time and bona fide disputes are only present maybe 1%-2% of the time (less than 20% of formal probates). If there is not a bona fide dispute, a formal probate is really just a pro forma bump in the road and is no big deal. Your lawyer schedules a hearing, gives formal notice to everyone entitled to notice (basically all family and anyone named in a current or prior will who is still living), lines up a witness or two, and if anyone file a will contest, actually conducts the hearing. If no one files a will contest, then the judge, issues letters testamentary to the PR, and the remaining probate case is no different than an informal probate. If someone does file a will contest, then the judge conducts a will contest hearing (with a jury if one was demanded in the will contest) and if decides which will, if any, is valid and who is entitled to be the PR. A pretty hotly contested will contest trial before a judge without a jury lasts about two or three days (usually after a few months to allow the parties to prepare for the trial). Once letters testamentary are issued and a PR is appointed following that hearing, a formal probate is the same as an informal probate. Supervised Administration. In very rare cases, maybe one in 200 to one in 500 cases, there are heated disputes about almost every issue related to administering the probate estate and a party requests and is granted permission to conduct a supervised administration. It is possible to have a supervised administration even in an informal probate, if there is no dispute over which will is valid, or who the PR should be, but there is great dispute over how the PR should handle the administration of the probate estate that posting a bond isn't sufficient to address. In a supervised administration, the PR must obtain pre-approval from the judge to do anything (which is how probate usually works in states that didn't adopt the Uniform Probate Code the way that Colorado and Utah did). This is much, much more expensive. What Formalities Are Necessary For The Trust Whether or not there is a probate proceeding or a small estate affidavit, if there is a trust, the trust must comply with certain formalities. If no probate is required, but there is a trust, the trustees by a deadline set in the Utah Probate Code have to file a &quot;trust registration statement&quot; which states the date that the trust became irrevocable (usually either the date it is formed or the date the person creating it died), the name and contact information of the trust, and the county where the trust records are kept which is also the county were the trust &quot;resides&quot; for lawsuit purposes. The trust must also obtain a taxpayer identification number from the IRS and file Tax Form 1041 and the parallel state tax form every year that it has more than $600 of income. In connection with a transfer of real property out of the trust, the trust will need to prepare and record in the real property records of the county where the real estate is located, in addition to the deed, a document which is basically an affidavit, proving that the person who is signing the deed as the trustee is really the trustee and authorized to sign the deed.
It is certainly possible to give gifts to your relatives (or to anyone really). But, the harder question is whether or not it is really a gift. A characterization of a transaction as a gift is less likely to be questioned if it is between related parties, and it is less likely to be questioned if it isn't obviously a quid pro quo. If you told your brother that you would make a gift to him of all of the appreciation in the house, if he made the guarantee in advance, it would be a guarantee fee (or an equitable or nominee ownership) rather than a gift. But, with the timing and motives described in this post, it is certainly a closer call. The fact that the "gift" amount exactly matches the appreciation casts doubt on the theory that this is really a gift, but doesn't absolutely clearly require the conclusion that it is not. This could end up being resolved either way, and ultimately, could be very dependent upon the detailed facts and how they are presented to the person determining if tax is owed.
When a debtor dies, with the debt outstanding, the debt enters default. The estate has to solve the outstanding debt before paying out any inheritances: The estate can and does pay up. This outstanding debt of the estate is gone, the car is paid off, and enters the estate as a value to be distributed as the will or rules dictate. The estate doesn't pay up, nobody refinances the car. The car is not part of the estate and can't be inherited. The debt is in default, and the car will be repossessed by the bank, together with any other securities for the car. The items/money repossessed leave the estate before any item can be distributed. The estate does not pay up, but one of the inheritors discusses with the bank to refinance the car. The car never enters the estate. The refinancing person now has a contract with the bank about a car loan. The debt leaves the estate by virtue of being no longer in the name of the deceased, its obligation was taken up by the refinancer. It's up to the bank to agree or deny. Many loan contracts contain a clause for the case of debtors dying.
Dead people have to pay their debts just like everybody else It is one of the primary roles of the executor to make sure this happens. Dead people can dispute a debt just like everybody else Just because someone says you owe them money, that doesn't mean you owe them money. In fact, the onus of proving the debt lies with the person claiming the money. It is perfectly reasonable for an executor to ask the creditor to do so. Some questions that are appropriate to ask: Presumably, the entitlement arises under a contract; when was the contract entered into? What were its terms? Where is the evidence the deceased agreed to these terms? Do the terms comply with (consumer) law? Have the prices been calculated in accordance with the terms? Have previous invoices been submitted and paid on the same basis? All the issues you mentioned. These are all things the creditor would need to prove if they went to court. If they can provide satisfactory answers to these then pay the bill. If they can't then try to agree to a settlement amount acceptable to both parties. If you can't do that, let them sue the estate and let a judge decide. The debts of the deceased person are payable by the estate of the deceased person for which the executor is the trustee. The executor has a duty to the beneficiaries of the estate to act in their best interest. This means paying bills that they are satisfied are justified, contesting those that aren't but ultimately, making commercial decisions that benefit the beneficiaries. Getting bogged down in a court case may not be in their best interest especially if it delays finalisation of the estate. In any event, the executor is not liable personally for the debt, or for anything they do or fail to do if done or not done in good faith.
It should be legal (though I can't find an analogous case where the court has ruled that it is). There is a regulation summarizing the government's position (thus, what will be enforced in 17 CFR 240.10b, which prohibits use of "manipulative or deceptive device or contrivance" in stock trading. Section 240.10b5-1 says: The “manipulative and deceptive devices” prohibited by Section 10(b) of the Act (15 U.S.C. 78j) and §240.10b-5 thereunder include, among other things, the purchase or sale of a security of any issuer, on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information. The executives clearly have a direct duty of trust of confidence. Section 240.10b5-2 enumerates the following duties: (1) Whenever a person agrees to maintain information in confidence; (2) Whenever the person communicating the material nonpublic information and the person to whom it is communicated have a history, pattern, or practice of sharing confidences, such that the recipient of the information knows or reasonably should know that the person communicating the material nonpublic information expects that the recipient will maintain its confidentiality; or (3) Whenever a person receives or obtains material nonpublic information from his or her spouse, parent, child, or sibling; provided, however, that the person receiving or obtaining the information may demonstrate that no duty of trust or confidence existed with respect to the information, by establishing that he or she neither knew nor reasonably should have known that the person who was the source of the information expected that the person would keep the information confidential, because of the parties' history, pattern, or practice of sharing and maintaining confidences, and because there was no agreement or understanding to maintain the confidentiality of the information. In the hypothetical, (1) is plainly not applicable. (2) is predicated on having a relationship (which doesn't exist) and the information-having expecting you to keep the information secret (he doesn't know that you have overheard them). (3) is likewise not applicable. The basic rule is that you can't "misapproprate" information, but you can use information that falls into your lap (even from a person who has a duty to not disclose the information). This subsection starts saying "For purposes of this section, a “duty of trust or confidence” exists in the following circumstances, among others", which means they aren't necessarily giving you an exhaustive list. Still, there is currently no legal basis for prosecuting a person who overhears information from someone he has no relationship to, even if you are pretty confident that the information has not been made public.
What would be an appropriate legal classification? A trust. How could this entity be structured so it could manage multiple estates? As a trust. Could this entity choose to keep, say, 30% for internal use e.g. resuscitation research? If that’s what it says in the trust deed, yes. How could this entity be made "recession-bulletproof," such that it could survive collapse of civilization? It can’t. Could it be given autonomy under the direction of a single person, or even sovereignty along the lines of a Mars colony? A trust is managed by its trustee(s) for the benefit of the beneficiaries. A trustee can be an individual or a corporation and there can be one or more of them. It couldn’t be given sovereignty - only nation states are sovereign. Could it be immune from legal jeopardy if it chose to accept clients who volunteer to be frozen before they die? No. What might happen to the estates if the economy is radically altered, e.g. a scarcity-free system where money is obsolete? Beats me - you’re the science fiction writer, you make it up.
Now I'm having another conversation with a lawyer and I'm not particularly happy (not to say outraged) that to answer a simple question they require £95 + VAT for 30 minutes Skype session. Maybe it is a common practice in law industry - in my industry (web development) we share our knowledge in an open-source manner. The rate you were charged is actually reasonable for such a limited engagement. Few lawyers are willing to even consider providing any advice on such a limited basis. Most would try to limit their clients to cases generating thousands of pounds in an in person visit. Lawyers are in the business of selling knowledge and time, not documents and results. An open-source approach would undermine their business model just as much as it would for the movie industry or the recording industry. While I appreciate professional legal advice (I know it is required) I have a belief that by obtaining some knowledge first I'll be in a position to ask better questions. This belief is not necessarily very well founded in this context. The reality of information about the law is that the raw data has limited usefulness. One of the main things that a legal education provides is an ability to "issue spot" so that you know what points need to be researched and where to look for them. Without the overall context that a legal education provides, knowing what issues you should be looking for is difficult or impossible, and this is particular true in Anglo-American common law systems, where the law is embedded in an opaque network of appellate cases rather than laid out more or less completely in a carefully organized statute. Also, you are almost completely unqualified to distinguish between a simple question and a hard one. Just as it is difficult for a non-expert to know what is difficult or impossible for a computer to do (e.g. turning raw image input in the models of reality is very hard for computers but easy for people, while intense calculations are simple for computers but hard for people), it is often very difficult for a non-lawyer to know what is an easy or hard legal question. For example, the rights of neighboring home owners when trees start to grow across property lines seem like simple questions but are actually extremely complex legally, as is another simple question such as explaining what a book means in IP terms as a book migrates to a new platform. But, some seemingly complex points (e.g. detailed questions of tax law or civil procedure) can have very simple and clear answers. Finally, keep in mind that in a situation like spousal alimony, if you've done as much research as you state, it is very likely that a definitive answer that you are looking for simply does not exist. There a lots of legal questions that do not have clear objective answers. This is because trial judges in family law matters have wide discretion in a lot of the fine points of alimony decisions, much of it exercised at the trial court level that does not generate binding legal precedents and is not widely available to researchers. Therefore, there is really no substitute in evaluating how judges will exercise that discretion for the collective experience of an attorney who has been through the process many, many times before the particular group of judges who are likely to handle your individual case. In sum, while I understand your frustration, a lot of it is rooted in common, but inaccurate assumptions about how the legal system works.
If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear.