Skip to navigation
Blog post


Heritage Law Group Feb. 19, 2020


If a person dies without a living trust, that person's estate will, in most cases, have to proceed through a legal process known as probate. If a person (referred to under the law as a "decedent" dies with a will, but no living trust, that person's estate will also have to be probated. Probate in the State of California is usually handled in the Superior Court in a probate division that is dedicated to handling a decedent's estate and other matters related to that estate. Probate is a formal process that can take a year or longer to complete. If the decedent died with a will, the person named in the will must file a petition in the probate court to be named the administrator of the decedent's estate. Notice to all persons and entities has to be given upon the filing of that probate petition so that any interested person or entity may file objections to the will or file an objection to the person appointed to carry out the terms of the will. If the decedent had no written will, someone will have to file the petition seeking appointment as the administrator of the decedent's estate. Oftentimes, in the situation where there is no will one or more individuals may want to serve as the administrator of the decedent's estate. In cases when there is more than one person seeking to administer the decedent's estate when there is no will, each such person will have to file a petition seeking appointment from the court to administer the estate. If the persons filing conflicting petitions cannot agree on who will be the administrator of the decedent's estate, the court can, upon agreement of the parties, appoint both as co-administrators. When no agreement can be reached between conflicting parties, the court can appoint a neutral third party administrator to administer the decedent's estate. 

Once an administrator is appointed by the court, that person is charged with determining all of the assets of the decedent and locating those assets. Notice of the decedent's death will be published in a newspaper so that all creditors of the decedent have notice that they have a certain period of time in which to file a claim against the estate or be prohibited from doing so at a later date. 

Once assets and debts are determined, the administrator will commence actions to liquidate or sell the assets so that all debts can be satisfied and the net assets can be distributed to all beneficiaries of the estate. In the case where the decedent left a will, that instrument will set forth the names of the beneficiaries and the disposition of the decedent's estate. In the case where the decedent died without a will, the laws of the State of California set forth the rightful heirs to the decedent's estate. 

Once the assets, debts and rightful heirs of the decedent's estate are finally determined, the administrator must file a final accounting with the probate court. Once the probate court approves the final accounting, the assets remaining after the payment of all rightful creditors will then be distributed to the beneficiaries. 

The Heritage Law Group has decades of experience in probating wills and can assist you in the probate process. 

A Living Trust and Probate 

A living trust is designed to avoid probate and that is one of the main reasons people use trusts in making estate plan decisions. In most cases a properly drafted living trust and one in which the assets of the trust are, where required, properly titled in the name of the trust, will not require that the trust be submitted to the probate process. The person who has been appointed as the successor trustee under the trust (the person who takes over the trust when the person who formed the trust has passed away) must, under the California Probate Code, give notice to the persons named in the trust who will be receiving assets from the trust. The successor trustee must also provide a copy of the trust to those persons upon request. 

There are a few instances where a trust may have to be admitted to probate, however, The first is where there is a written trust instrument, but one or more assets of the trust were not properly titled in the name of the trust; this is a fairly common occurrence in the case of real property. In that case, a probate action will need to be commenced so that the assets can be determined by the probate to be assets of the trust and thereafter distributed the beneficiaries of the trust according to the terms of the trust. 

The second instance occurs when one or more of the terms of the trust document are unclear or subject to different interpretations. In that case, the California Probate Code allows the successor trustee to submit the trust document to the court for a determination as to the meaning of the terms in question and to give instructions to the successor trustee as to how to carry out his or her duties based on the court's determination. 

The third instance is when one or more of the beneficiaries wants to challenge the terms of the trust or to challenge the right of the successor trustee to act in that capacity. The most common reasons to a challenge the trust are based on allegations that the person making the trust was either mentally incompetent at the time the trust was made, or that someone unduly influenced the maker of the trust to make decisions that the maker of the trust would normally not have made had the undue influence not occurred. 

The Heritage Law Group has decades of experience in assisting customers in the management of trusts as well as defending and prosecuting trust claims.

Benefits of Estate Planning 

Estate planning is a topic that is avoided by many people. Even though it may seem troublesome to think about, having a strategic estate plan is always beneficial, not only for your children or beneficiaries, but for yourself, as well. Rather than waiting to plan and possibly never having the chance to do so, it is a great relief to complete the task. 

Some may think that estate planning is and for them. Perhaps they don't have many assets, or any beneficiaries in mind, However, no matter how much money you have, or what age you are, estate planning is for everyone. Even if you don't have much money in the bank, you have assets in the form of your insurance, your home, your car, or other belongings, and more. 

Why Do I Need a Will? 

Wills are an advantage to you since they can be changed throughout your life. A will is a legal document that states which assets you want to give as well as what you want to happen if you become ill or disabled. Wills are also a benefit as you can choose who will be the guardian for your children and who will manage your children's' inheritance. 

What is a Living Trust? 

The living trust allows you to determine which assets you want placed in trust during your lifetime that will transfer to your beneficiaries after you pass. Because there are many types of trust, a knowledgeable attorney can help you determine which is best for you. 

You absolutely need a trust if: 

You own real property 

You have children 

You have assets that total more than a few hundred thousand dollars. 

4 Reasons to Have a Trust: 

Avoid Probate 

A living trust will determine who receives your assets after you pass without expensive court costs and the long, burdensome process of probate. Probate is expensive and very time consuming and can take up to 2 years to complete. 

Minimize Taxes 

If you have an estate plan your beneficiaries can minimize estate taxes. Estate taxes can take up to 45% of your estate. A living trust can help to minimize these taxes. 

Maintain Control of Distribution of Your Assets 

When you have an estate plan, you are able to remain in control of your assets and property, Even if you're sick or disabled, having a will allows you to do as you wish with your assets. You will determine who will receive your assets and when they will receive them. 

An estate plan will follow your instructions concerning whom you wish to give your assets to and when you want them to receive it. Whether you are a planner or a more spontaneous person, knowing that your loved ones will be taken care of in the way you want will bring you peace of mind. 

Protect Your Children and Yourself 

Within a State plan, you can select the guardian of your minor children and how your funds will be used for the care of those children. 

Estate planning also includes an advance health care directive so that you can give instructions to doctors for your end of life care. Also, if you become disabled and cannot make decisions on your own behalf, a durable power of attorney will allow someone that you trust to make financial decisions on your behalf, 

It is your choice if you want to have a trustor will. It is not necessary to have a trust, however, it is extremely beneficial. Just know that if you do not have a trust or a will the State will dictate what happens to your assets if you become disabled and cannot make decisions or if you pass away without a will or a trust. Choosing to forego an estate plan is your decision, but it can lead to a costly and very inconvenient process for your family. 

Not only is estate planning beneficial for your family, but it will also help relieve any stress or worry you may have about the future. If you like knowing that you and your family have security and are taken care of according to your wishes, State planning may be just what you need.