Wills and Trusts

BEFORE A PERSON DIES, it is important to have a Will or Trust in place to be sure the assets pass according to person’s wishes. A Will or Trust will help to avoid future family conflicts and court proceedings.

Without a Will or Trust, a person’s estate may be probated in a court-supervised process for identifying and gathering decedent’s assets; paying taxes, debts, and expenses; and distributing the balance to beneficiaries. Probate deals with transferring the property of someone who has died (decedent) to the heirs or beneficiaries, deciding if a Will/Codicil is valid, and taking care of the financial responsibilities of the person who has died. A person dies either “testate”, meaning decedent left a Will/Codicil or “intestate”, meaning the decedent left no Will/Codicil.

California Prob. Code § 8200 requires that when a person dies, the person in possession of the Will, must deliver the decedent’s original Will to the Court of the County in which the estate of the decedent may be administered; commonly, this will be the County where the decedent resided at the time of death.

However, not every estate must be probated. Estates where the total value of the assets is less than $150,000, certain affidavits or summary proceedings may allow for the transfer of property. The size of the estate, the relationship of the decedent to the beneficiary, and the character and/or title of the property generally determine the procedure applied to any given situation.

In addition to depositing the original Will, the person who was in possession of the Will is required to deliver a copy of the Will to the person named as executor, if the person’s whereabouts are known, or if not, to a person named in the Will as a beneficiary, if the person’s whereabouts are known.

A trust, on the other hand, is an arrangement which takes effect during the lifetime of the creator of a trust. A trust avoids probate on any assets that are titled in the name of the trust. The terms of the trust must be revealed to the beneficiaries and heirs when the terms become irrevocable. The terms usually become irrevocable when the creator of the trust dies. A trust may also be set up by a will, which leaves property in trust for a beneficiary. These trusts are called testamentary trusts and are usually irrevocable. Trusts are not filed or registered with the Court.

It is critical that a person set up an estate plan before death so that one’s wishes be fulfilled without the conflicts that may arise without having a Will or Trust in place. It is advised that one seek the professional guidance of an experienced estate planning attorney.