Probate Overview

When it is time to move forward with sorting out the affairs of the deceased, the first thing to determine is whether or not they had a Trust. If the person who died, or “decedent”, did not have a Trust, then their assets are going to be part of the “decedent’s estate”. Any assets that are not in a Trust (even if the decedent left a Will) are going to be part of the decedent’s estate.

The decedent’s estate will need to go through the Probate process to be distributed (Probate Code § 7000, et seq.) unless (a) the assets are subject to a nonprobate transfer instrument like a Trust, insurance policy, or account agreement that sets forth beneficiaries (Probate Code § 5000), or (b) the aggregate value of the decedent’s estate is less than $166,250 (Probate Code § 13100).

If the decedent’s estate is a “small estate” valued in the aggregate at less than $166,250, the California Probate Code §§ 13000 - 13210 provides processes for the collection or transfer of the small estate “without administration”. These processes are, in general, executed through the use of affidavits or sworn statements. When calculating the value of the decedent’s estate, not all assets are included. Assets that are subject to nonprobate transfer instruments, and some other assets (like vehicles), are excluded from the aggregate value of the decedent’s estate (Probate Code § 13050).

If the decedent’s estate is not subject to a nonprobate transfer instrument, and is worth more than $166,250, the estate is going to have to go through a Court-supervised process known as Probate. If the decedent left a Will, that Will is going to be Probated, and - subject to Court approval after a lengthy process - the decedent’s estate will be disbursed according to the instructions left in the Will. If the decedent does not have a Will, the decedent’s estate will be disbursed to the decedent’s heirs according to the intestate succession distribution scheme set forth in California Probate Code § 6400, et seq..

In general, the best thing to do when confronted with a Probate situation is to consult with legal counsel. We would be glad to discuss your situation with you. Initial consultation is usually free, and if Probate is required our legal fees will be set by statute (Probate Code § 10810).

Trust Administration Overview

If the decedent has a Trust, and you are named as a beneficiary, consider yourself lucky. Look to the heavens and thank your loved one for having the prudence to put their affairs in proper order. If the Trust is funded correctly, the assets held in Trust will not be subject to the Probate process, and you will most likely receive your inheritance much, much sooner than if the assets had to go through Probate. Note, though, that in most cases Trust Administration remains a process that takes time - but it is a private process controlled by the Trustee that generally takes a much shorter time to complete than Probate.

What if I am the Beneficiary of a Trust?

In general, after the passing of a decedent, the beneficiary of a Trust should try to relax and wait for the Trustee to perform their duties of Administration. The Trustee has a host of duties, or legal obligations, to live up to during the Administration. One of those obligations is the duty to keep all beneficiaries reasonably informed of the Trust and its Administration (Probate Code § 16060). But, the Trustee has up to 60 days after a Trust becomes irrevocable to provide formal notice of the Administration of the Trust to the beneficiaries ((Probate Code § 16061.7(f)).

As a practical matter, what this generally means is that the Trustee may have up to two months after the death of the decedent before they are obligated to “say anything” about the Trust to the beneficiaries. In most circumstances, the Trustee has also lost a loved one just as the other beneficiaries have. But, in addition to the shared loss, the Truste has the added responsibility of performing their legal duties and executing the Administration of the Trust. While the Trustee is obligated pursuant to Probate Code § 16060.7 to provide the terms of a Trust to a beneficiary upon request, under normal circumstances the beneficiary should be mindful of the added stress they may be putting upon the Trustee by immediately inquiring about the Trust or insisting upon a prompt distribution of their inheritance shortly after the passing of the decedent.

The beneficiary might strive instead to be a source of support to the Trustee as they perform their tasks. They could consider giving the Trustee a fair chance to seek out legal counsel, and an adequate opportunity to adjust to their new role. Give the Trustee some time to sort through the emotional toll of their loss compounded by their added responsibilities. Instead of pressuring the Trustee, the beneficiary might offer consolation and a willingness to help with the Administration. Often times, the gestures are greatly appreciated, and the offers of assistance are gratefully accepted.