Along with helping individuals and families in planning their estates, our firm also represents clients in post-death administration, including trust administration and probate proceedings.
In general: When a loved one passes away, his or her estate must go through an “administration” process, where assets and liabilities are gathered, managed and distributed in accordance with certain provisions of the law. “Estate administration”, a generic term, can involve trust administration, or certain simplified procedures, and/or a court-managed process known as probate.
Determining the proper “administration” procedure: Whether a trust administration, or probate, or some other procedure is required, the answer primarily depends on (1) the type of estate planning a decedent had, if any; (2) the value of the assets owned by the decedent at the time of death; and (3) the titling and beneficiary designations in effect.
Attorney’s role is to provide legal advice to the estate administrator (i.e., trustee or the executor/administrator) and beneficiaries of an estate, to help them navigate the process to ensure that the appropriate administration procedure is selected and done properly, and to understand and protect their rights.
When a loved one passes away with a living trust in place, the trust will need to be administered (or “settled”) to wind up the affairs of the decedent’s estate.
Private, out-of-court process. A well-drafted and properly funded trust is likely to avoid the probate process in most cases. Although trust administration is a private process conducted outside-of-court, and is much simpler than a probate, it is still a legal process requiring some formalities to be followed.
The process of administering a California trust varies depending on the terms of the trust. Trustees owe fiduciary duties to protect estate assets and make prudent financial decisions. In general, all trustees are responsible for the following:
- Providing all legally required notices and filings
- Identifying all of the assets owned by the trust
- Determining the value of trust assets
- Handling all necessary recordings pertaining to real property transfers
- Identifying the beneficiaries of the trust, and providing certain information to those beneficiaries
- Determining and paying all outstanding debts and/or taxes of the decedent and estate
- Accounting for how trust resources are managed
- Distributing the assets to beneficiaries according to the terms of the trust
Attorney’s role. Having the guidance of an attorney can provide a trustee with a peace of mind that all important steps and all requirements are being met accurately and timely. If you have been named as a trustee, the Law Office of Lana Black can provide you with necessary trust administration/settlement advice and service. We can help you to efficiently administer the trust by working closely with you and your existing fiduciaries, including your financial advisor, accountant, and other trusted advisors. We can also help you understand your responsibilities, to ensure the trustee’s legal duties are carried out, the trust assets are properly distributed, and the beneficiary rights are protected. Lana Black’s own background in business law and real estate enables her to provide particularly invaluable advice to estates and trusts involving business and real property holdings.
In general, the Probate Court oversees the process pertaining to estates of deceased individuals, conservatorship of legally incapacitated adults, and guardianship of minor children.
In case of a deceased individual, probate is legal proceeding in which a Court oversees the process of identifying a deceased person’s heirs, property, and valid debts. The goal of the probate proceeding is to ensure that a decedent’s valid debts are paid and remaining estate assets are distributed to the proper heirs.
Decedent leaving a will. If a person passes away with a will, the Probate Court conducts certain process to validate the will, pay the debts, and then proceed to distribution of assets according to the terms of the will.
Decedent not leaving a will. If a person passes away without a will (and without a trust), the Probate Court determines the distribution of the assets according to the order of beneficiaries set by the law of intestacy (i.e. based on familial relationship to the decedent).
Why is probate often disfavored? Probate process is often disfavored for the following reasons:
- too long: in California, probate is notoriously time consuming, often taking close to 1-2 years, or even longer for the process to be completed and the assets to be fully distributed
- too expensive: with high statutory attorney and representative fees, plus additional costs (courts, bonding, appraisers, etc.)
- too public: with no privacy, and ease of contestability, so that any “interested party” may see the decedent’s assets and debts, and disgruntled heirs may be “invited” to contest the will
Other simplified procedures may be available: In some instances, even with having only a will and no living trust, several simplified procedures are available instead of a full probate process. These may pertain to the following:
- Gross estates valued less than $150,000, other than real property (in California)
- Spousal petitions, where the decedent’s will left everything to the surviving spouse
- Named beneficiaries in insurance policies, annuities, retirement accounts, and some investment accounts
While most of our clients approach us for handling private trust administrations, with estates set up in a way that avoids probate entirely, we also provide services to those whose loved ones passed away without living trusts in place thus requiring legal assistance through the California probate process.