Being called upon to serve as a trustee or an executor is a great honor. Acting as a fiduciary, someone in a position of confidence and trust is a vital role. Being familiar with your expected duties and the basics of probate and trust administration will be extremely helpful. Here are the answers to a few commonly asked questions about these two areas of estate planning.
Q. What is a trust?
Trusts are basically fiduciary agreements between a trustee and the grantor, who is the person making the trust. Fiduciary simply means the agreement is based on the trust and confidence. The trust document gives the trustee the authority to manage the trust assets and distribute them to the named beneficiaries pursuant to the terms of the trust agreement. A trust may be used in place of a will or may be used in conjunction with a will where it only applies to certain property.
Q. What does it mean to have a revocable trust?
All trusts are categorized as either revocable or irrevocable, which is an important distinction based on how the trust operates. A revocable trust, more commonly referred to as a living trust, provides the grantor with the ability to make changes to the terms of the trust, or revoke the trust altogether, at any time while they are still alive. After the grantor’s death, the trust becomes irrevocable. A revocable trust is flexible because it can be modified to account for changes in your circumstances or intentions. With a revocable trust, the trustee does not take control until after your death or incapacity.
Q. How is an irrevocable trust different?
On the other hand, an irrevocable trust cannot be altered by the grantor after it has been executed. This characteristic can be very helpful. Once an irrevocable trust has been created, the trust assets are in effect out of the reach of creditors and the probate court. They are not subject to estate taxes either. Although you relinquish control over your assets when they are placed in an irrevocable trust, you gain favorable tax consequences. An irrevocable trust is commonly preferred over a revocable trust if the goal is to reduce estate taxes.
Q. What does estate administration include?
The purpose of estate administration is to supervise the transfer of the estate of the deceased in an organized way, based on the probate laws of the state where the deceased resided. An executor or administrator is appointed to manage this process. There are two main goals of the probate process — paying the debts of the deceased and distributing assets to beneficiaries. Although the exact procedure and requirements may vary from one state to the next, the same general process is involved.
Q. How do you start the probate administration process?
In California, the probate process begins in the superior court for the county where the deceased was living at the time of his or her death. The first step is filing the initial petition with the court. This filing initiates the administrative process. The next step is a hearing, which is typically set for thirty days after the petition is filed. Notice of the hearing will be published in order to inform all interested parties of the proceedings, including potential heirs and creditors. The requirements for the notice are established by the court.
Q. What is the order of distribution of the assets in an estate?
Before any assets are distributed to heirs and beneficiaries, creditors with legitimate claims must be paid first. California requires creditors to submit their claims within four months after the appointment of the executor. Funeral expenses must also be taken care of, as well as, estate taxes. California imposes estate taxes in addition to those owed to the federal government. Finally, the remaining assets are distributed to the appropriate heirs and beneficiaries.
Q. What happens to the estate in California if there is no will?
One reason a probate lawyer needs to know about the probate code is to understand the laws of intestate succession. These laws determine who gets what if you die without a will. In general terms, if you die without a will in Sacramento, your assets will go to your closest relatives.
If you die with surviving children, but no spouse, parents or siblings, your children will inherit everything in your estate. If you die with a surviving spouse, but no children, parents or siblings, then your spouse inherits everything. Your parents are next in line, meaning, if you have no surviving spouse, children or siblings, they will inherit. The same is true, if only siblings survive you.
If you leave a spouse and children behind, your spouse inherits all of your community property and one-half or one-third of your separate property. Your children inherit one-half or two-thirds of your separate property.
If you have questions regarding probate or trust administration or any other estate planning needs, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.