PROBATE VS. TRUST ADMINISTRATION
When a loved one passes away, it is an emotional and stressful time. Unfortunately, while you are still grieving, you do have to face the practicalities of trying to figure out how to settle your family member’s affairs. The hope is that you know exactly where that estate planning binder is; however, if your loved one never did any estate planning, you may be facing probate. A California elder law attorney can help you sort through these issues.
The Probate Process
To put it very simply, Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the “decedent”) to his or her heirs. In California, you must go through probate if your loved one did not have a living trust and owed real property greater than $50,000.00 or had assets totaling $150,000.00 or more.
In most probates, you go through the following steps:
- Ask the court to be appointed as the administrator or executor of the estate.
- Notify creditors and gather assets.
- File an “Inventory and Appraisal” of the decedent’s assets.
- If you are selling a house or other real property, you may have to go to court to formally sell the property.
- Finally, you have to finalize distributions with the court and be formally excused as the administrator.
Every time that you go to court pay a filing fee. You are also paying fees for notice in the newspaper, probate referees (individuals who appraise estate property) and attorneys. The other frustrating part about the probate process is the time spent waiting for court dates. It is not uncommon for a probate to take 1-2 years before final distributions are made.
Unlike the probate process, trust administration is usually not supervised by the court and as a result, is often much faster and much less expensive. It is important to understand, however, that it is a process and there are certain legal requirements that must occur before distributions are made from the trust to beneficiaries.
Some steps we take to administer a trust include:
- Giving notice to beneficiaries.
- Inventorying and appraising the decedent’s assets.
- Assisting with issues related to outstanding debts, creditors and taxes.
- Distributing assets according to terms of the trust.
Assuming that no one decides to fight over the trust and all debts have been accounted for, the trust administration process can often be finished within 6 months.
Additionally, unlike probate, attorneys’ fees are negotiable.
Regardless of whether you are facing a probate situation or trust administration, after acquiring death certificates, contact an attorney to assist with the process.
All materials have been prepared for general information purposes only to permit you to learn more about our firm, our services and the experience of our attorneys. The information presented is not legal advice, is not to be acted on as such, and may be subject to change without notice.
TRUST ADMINISTRATION AND PROBATE VOCABULARY
Executor: The person named in a will to be in charge of a person’s estate.
Administrator: The person appointed by the probate court to be in charge of a person’s estate when there is no will or no executor has been named in the will.
Decedent: The individual who has died.
Trustee: An individual person given control or powers of administration of property in trust with a legal obligation to administer it solely for the purposes specified.
Beneficiary: An individual who obtains advantage from a trust, will or life insurance policy.
Heir: One who acquires property upon the death of another, based on the state laws of descent and distribution.
Intestacy: The state of dying without a will. If a person dies without a will he is said to have “died intestate.” The estate of a person who has died intestate goes through probate court. The state’s intestacy laws will determine who will inherit the decedent’s assets.