Article: A Guide to Admitting a Will to Probate for the Purpose of Validating the Exercise of a Power of Appointment

Steven Platt, Jadene Tamura, and Suzie Vardanyan (Parker, Milliken, Clark, O’Hara & Samuelian) recently published, A Guide to Admitting a Will to Probate for the Purpose of Validating the Exercise of a Power of Appointment, NAEPC Journal of Estate & Tax Planning, December 2023. Provided below is an Introduction:

In California, a probate proceeding traditionally involves the administration and disposition of a decedent’s assets.  An archetypal probate proceeding includes the submission of an instrument to be recognized by the court as the decedent’s final will, and the appointment of a personal representative who marshals and inventories the assets, provides notice to creditors, and, ultimately, distributes the assets to the beneficiaries, all under the court’s supervision.  The proceeding is public, and it can be time-consuming and costly with filing fees, publication fees, and statutory fees for probate referees, attorneys, and administrators.

Estate planning lawyers in California often recommend tools that circumvent probate administration, most commonly by transferring assets to a living trust prior to the settlor’s death.  Even when a person has used a trust or other estate planning tools to avoid a probate administration at the person’s death, there are situations that may require the probate court’s involvement.

In this article, we explore why a common trust provision—a power of appointment exercisable by will—may require involvement of the probate court, and we suggest an alternative to a typical probate proceeding while still providing a mechanism to confirm the validity of the exercise of a power of appointment under the powerholder’s will.