Probate is a court-supervised process for distributing the individually owned assets of a deceased person. Eventually, assets are distributed to beneficiaries in accordance with the instructions written in the person's will, if there is a will. However, this does not happen until the time and expense of the probate process has occurred.
If you have a will and your assets are less than the probate exemption amount, then there may be no need for probate. A will, however, does not avoid probate. Even with a will, if your assets (that do not have designated surviving beneficiaries or surviving joint owners) are greater than the probate exemption amount, then your assets must be probated. Probate takes time and is expensive. Therefore, it is important to plan ahead so your loved ones can avoid an otherwise unnecessary probate.
Your estate may require a trust to avoid probate, and sometimes holding property jointly or naming designated beneficiaries who survive you avoids probate. If your estate does require a probate, court forms must be completed and the following must happen: prove to the court that the will is valid (this is usually routine); appoint a legal representative with authority to act on behalf of the decedent; identify and inventory the decedent's property, and have that property appraised; pay debts and taxes; and distribute the remaining property according to the terms of the will or to the decedent's heirs. With proper planning, the time and expense of probate can be completed avoided.
Contact a probate attorney from Lee Ann Shenkman, Attorney at Law in Soquel, CA.
A living trust is a legal document that, just like a will, contains your instructions for what you want to happen to your assets when you die. But, unlike a will, a living trust can avoid probate at death.
Upon the death of a settlor/grantor/trustor (the individual who established the trust), the successor trustee is responsible for seeing that the assets of the trust are distributed properly and in a timely manner. Trust administration typically includes the following duties: thorough review of the trust document; file the pour-over will with the court; mail legal notices to beneficiaries; file documents with the county recorder; gather all trust assets; federal estate tax analysis; collect death benefits; create sub-trusts and obtain tax i.d. numbers; distribute trust assets and terminate the trust. Unlike an executor, a trustee does not need a probate court's approval to act. The trustee follows the directions written in the trust instrument.
It is common for a settlor to leave assets to their minor or young adult children in a sub-trust. If the trust document specifies that assets for a young person are to be distributed to a sub-trust, then the trustee will manage the assets of those sub-trusts until the child or young adult has reached the age the trust specifies. Generally, the assets in the sub-trust can be used for the health and welfare of the beneficiary, and upon the beneficiary reaching a specified age, the remaining assets are distributed outright to the beneficiary.