The loss of a loved one is difficult enough for relatives and friends without the added stress of settling the family member’s estate. Unfortunately, the law requires an executor or trustee to begin the process of transferring property from the person who has died almost immediately—throwing the executor headfirst into legal procedures at one of the hardest times of their lives. If the trustee is also a family member, he or she may also be expected to handle funeral arrangements and other details, placing the burden of the loss unfairly on this one person.
At The Estate Planning Law Center, we take over the legal aspects of closing a loved one’s estate, allowing families to take the time they need to grieve. Whether the estate must go through probate or trust administration, we can transfer assets to beneficiaries and ensure that your loved one’s wishes are followed with minimum disruption to your life. Call us today to schedule your initial consultation with California probate attorney Richard M. Seff.
We Are Here to Guide You Through Probate or Trust Administration in California
Although many of the same steps are involved in probate and trust administration, there are a few important differences in these two ways to settle a deceased person’s estate. Probate is a court process that is required to transfer assets when money and belongings are in the deceased’s name only. An executor is named to present a list of all the deceased’s holdings to the court, who will then subtract any outstanding debts from the estate before releasing the rest to beneficiaries. Some of the disadvantages to probate are that the proceedings are public record, it is often expensive, and it can take a long time before assets are distributed.
A living trust allows assets to be transferred without going through probate. If a loved one has assets in a trust in his sole name and he becomes incapacitated or passes away, the assets immediately pass to the successor trustee named in the trust agreement. The court is not involved since the “owner” of the assets has not changed—the trust is still the owner—allowing the estate transactions to remain private. In addition, the new trustee can access accounts immediately, making trust administration typically shorter and less expensive than probate. However, the trustee is legally responsible for the management and distribution of trust assets, and the trust must have been properly funded to avoid probate proceedings.
The amount of information and effort required to settle an estate can be overwhelming. That is why we help executors and trustees perform all of the legal responsibilities necessary after a death, including:
- Locate and review all of the deceased’s important papers, including gathering death certificates; insurance policies; contents of safe deposit boxes; the original of the trust agreement; account statements; arrangements for burial, cremation, or memorial services; tax identification numbers; and all other pertinent documents.
- List and protect household goods to prevent theft or appropriation by beneficiaries or other parties.
- Consolidate accounts of liquid assets into one account that is held by the estate or the trust.
- Pay outstanding debts using funds in the trust to avoid trustee liability for any unpaid bills.
- File tax returns, including the deceased’s final and outstanding state and federal tax returns, the trust’s 1041 income tax returns, and estate tax returns.
- File a will in probate court for any assets that are not part of a trust, to prevent destruction of the will and allow creditors to come forward for collection.
- Prepare beneficiary receipt and release forms for each beneficiary to sign, stating that they have received their inheritance and that they release the trustee from further responsibility or liability.
- Resolve probate and trust disputes that arise when any “interested person” (such as an heir, beneficiary, or creditor) challenge the validity of the trust, or if a renegade trustee is ignoring his or her fiduciary duties.