Even thoughtful and carefully made estate plans can go wrong.  Beneficiaries can come to loggerheads among themselves or with your successor trustee.  An unexpected situation can arise that raises questions about the terms of your plan.  Rules can change in ways that cause a trustee legitimate doubt about how to proceed.  A trustee might make a truly bad decision, become incapacitated or simply fail to act.

California probate courts are uniquely empowered to deal with these issues.  In an ordinary court of law, the judge must make decisions based on settled interpretations of the law.  But the probate court is a court of equity, which means the judge has discretion to do whatever he or she thinks is fair (or “equitable”) in the situation.  This is encouraging, on one hand, because probate judges usually work hard to determine what you intended when you made your plan.  It is troubling, on the other hand, because probate court matters are usually decided by the judge, not by a jury, which means the judge’s personal world view can play heavily.

If your primary estate planning document is a will, then every aspect of administering your estate will be subject to court approval.  One of the biggest advantages in using a trust is that the probate court should not be involved in your affairs.  There is a disadvantage in this.  If you want to ask for a court’s review of a trust matter, it can be difficult to get it in front of a judge.

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