Article: The Rise of the Revocable Trust in California

Anne M. Rudolph and Ralph E. Hughes recently published and Article The Rise of the Revocable Trust in California, Trusts & Estates Quarterly 2023. Provided below is the Abstract:

Fifty years ago, in 1973, when “Tie a Yellow Ribbon ‘Round

the Old Oak Tree” topped Billboard’s annual list of the

top 100 songs,01 the California State Bar (“State Bar”)

officially refused to recommend replacing the California

Probate Code with the Uniform Probate Code (“UPC”).02

Instead of recommending the adoption of the UPC, the

State Bar proposed the adoption of statutes purportedly

aimed at streamlining the California probate administration

process. The proposed statutes became the Independent

Administration of Estates Act (“IAEA”), now set forth in

Probate Code sections 10400 through 10591.03

In the half-century since 1973, most California attorneys

have gradually but fully moved away from wills and

the California probate process and have embraced the

revocable trust as the dominant lawyer-directed estate

planning method for California residents. Lawyers and

clients have adopted the revocable trust to avoid the

perceived delay, publicity, and expense of California’s formal

probate system. As noted in the California Trusts and Estates

Quarterly (“Quarterly”) in 2007, “The problem is probate.

Probate takes so long and costs so much that competent

estate planning attorneys believe they must recommend

trusts to protect their clients’ families from unnecessary

delay and expense.”

 

This article traces the history of California’s continued

refusal to adopt the UPC and other less-formal probate

administration procedures, and it explores the parallel

expansion in the use of the revocable trust. It focuses on

four major attempts to eliminate or reform California’s formal probate system, each of which was rejected while, at

the same time, the use of revocable trusts skyrocketed.

 

The authors’ discovery of the history of California’s repeated

rejection of efforts to reform probate administration has led

to spirited discussions regarding the benefits and burdens

of the revocable trust as opposed to formal probate and/or

elective probate. Nevertheless, the authors have attempted

in this article to present the history of attempts to reform

California’s probate system in a relatively dispassionate

manner, with a few editorial comments. In addition,

questions posed at the end of the article may suggest a

need for further evaluation.

 

The article concerns itself with the concept of the revocable

trust as a tool for avoidance of probate administration. The

article does not address irrevocable trusts of any kind.

The article quotes extensively from previous articles in the

Quarterly because the history is best illuminated through

the eyes of the people who observed the developments

as they happened. For the same reason, this article refers

extensively to the Minutes of various meetings held

by the Executive Committee of the Probate and Trust

Section of the State Bar (“EXCOMM”) and by EXCOMM’s

successor, the Trusts and Estates Executive Committee

of the State Bar, which is now the Trusts and Estates

Executive Committee of the California Lawyers Association

(“TEXCOM”).

 

Given that the growth of the use of the revocable trust

has been driven by the public’s desire to avoid probate, it

is illuminating that EXCOMM (which featured the word

“probate” in its formal title) changed its name to TEXCOM

in 2002, at least in part because, “[the word] ‘probate’

connotes to many members of the public a negative image

of our profession.”