Probate with a Will vs. Probate with a Trust

Navigating the probate court system to probate a will is a complex matter and one that often experiences delays due to the state budgetary constraints and the aging population. The California Probate Code is explicit about the complicated steps required to probate a will. Probate is used with a will to ensure that assets will go to the heirs selected to receive them. Property and other assets do not have to go through the probate court system if they are legally identified as jointly held with rights of survivorship. However, it can be difficult to construct language to satisfy businesses and organizations which you expect to transfer routinely jointly owned assets.

NM Law, APC can help you by making sure all of these assets are documented in a manner prescribed by law. NM Law, APC offers significant experience in creating a will that will ensure your wishes for the distribution of your assets after your death are carried out. We can assist the executor lodge the will with probate and assist with following the court’s orders and complying with then Probate Code.

Assets held in trust have generally escaped the probate court process. A trustee holds the legal title to the assets placed in the trust, and the trustee manages the assets for the benefit of the beneficiaries. The maker of the trust who is known as the settlor must convey all of the assets to the trust during the lifetime of the settlor. Since the assets are in the name of the trustee, the death of the settler does not affect the ability of the trustee to transfer ownership to the beneficiaries. This probate avoidance feature is codified in the California Nonprobate Transfer Rules.  NM Law, APC can assist with the preparation of this type of trust.

Trusts are frequently created in wills, and they are governed by the terms under which they are created. Probate may be required for assets that are not included in the trust and are not transferable by the rights of survivorship.

Probate is a complex process, and proper planning can considerably lessen the burden on the loved ones. We can make sure that your loved ones will not have to worry about estate issues while going through the grief of loss. Several types of estate preservation and asset transfer are available. Contact  NM Law, APC for a discussion about which plan would best serve your wishes.


Disclaimer: This article is intended to provide a general summary of laws in the State of California and should not be construed as a legal opinion nor a complete legal analysis of the subject matter. Noelle Minto is an attorney at NM Law, APC in Tustin, California, a law firm specializing in Trusts & Estates and Business Transactions.

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