When a loved one passes away, how they prepared (or failed to prepare) to have their assets distributed after they are gone will make a profound difference in how their estate is managed. Understanding the differences between probate and trust administration can help you navigate your responsibilities if either of these tasks fall to you and also make informed decisions for your own estate planning.
Probate Administration vs. Trust Administration
Probate is the legal process to transfer property after somebody has passed away. The court will validate the decedent’s will (if there is one), appoint an executor, and ensure that creditors are paid before the remaining assets are distributed to the beneficiaries. This court-supervised process must be followed in California if the value of the person’s estate is greater than $184,500 and if provisions have not been made to transfer property by other means (such as having a named beneficiary for an account or holding the property in a living trust). Probate can apply if the decedent only had a will to direct their wishes for their property or if they died without a will (intestate). This process is both time-consuming and costly, as probate fees that are set by law will be assessed against the estate.
If someone’s assets have been placed in a trust, they do not need to go through probate. When the person who created the trust dies, it is the responsibility of the successor trustee to manage and distribute the assets according to the terms of the trust. While they may handle tasks that are similar to those handled by an executor in probate court, trust administration does not require court involvement and is not subject to probate fees. This estate planning strategy maintains privacy for the estate and the beneficiaries, as the terms do not have to be made a matter of public record, and it tends to be faster than going through probate.
The key breakdowns:
Probate
Trust
Court involved?
Required
Not required
Privacy
Terms and outcome are public record
Terms and outcome are private
Cost
Fees set by law according to the value of the estate; can add up to a significant fraction of the estate’s value
Can vary depending on the complexity of the trust, but generally substantially lower than probate
Timeframe to settle estate
Approximately 9 to 24 months (but may be longer for complex estates or if there is a dispute)
Depends on the size and complexity of the estate and trust; can take as little as a few months
Flexibility
Limited
Can exercise greater
What Does the Probate Process Involve in California?
To go through probate in California, in general you will proceed through the following steps:
Filing the will and petitioning the court to appoint a personal representative.
Posting a bond.
Searching for and providing notice to heirs.
Appointing a probate referee to value assets.
Having an executor or administrator chosen to represent the estate during probate.
Making an inventory of all the decedent’s property and estimating its value.
Provide formal notice to creditors and pay debts.
Prepare a final tax return for the decedent.
Prepare a final accounting.
Provide a report to the court on how the estate has been administered so the court can approve final distribution of remaining assets to beneficiaries.
As noted above, this process tends to take a minimum of nine months but can take much longer, especially if the estate is complex or if disputes arise between beneficiaries.
What Does Trust Administration Involve in California?
In general, trust administration is simpler than probate administration because it is more discretionary and is an independent process outside the purview of the court. It generally involves:
Identifying and valuing trust assets.
Notifying beneficiaries.
Paying appropriate debts and taxes from the trust.
Investing and liquidating assets.
Keeping detailed records of assets, transactions, and decisions related to the trust.
Distributing assets according to the terms of the trust.
Establishing a trust can provide the opportunity for more flexibility for the trustee and the beneficiaries and can allow for more nuanced giving (for example, delaying giving control of the bulk of a younger relative’s inheritance to them until they are more mature). For larger estates with a variety of different types of assets to manage, employing a professional trustee can help ensure that the tasks involved with administration are done effectively and promptly.
What Approach Is Best for Your Estate?
If your estate is large enough to be subject to probate in the first place, it is worth exploring establishing a trust to avoid having the delay and expense of having the court be in control of how your estate is settled. If your estate is more complex, or if you would prefer to keep how your assets are distributed confidential, then a trust is a necessity. The expert estate planning attorneys at NM Law can help you create an estate plan that avoids probate, minimizes your tax liability, and facilitates the smooth transfer of assets to your chosen beneficiaries. Our experience in both probate and trust administration can also help guide your family if you are not sure how to fulfill your responsibilities. To get started, contact us here to schedule your consultation.
NOELLE MINTO, ESQ.
Ms. Minto has been a business and estates transactional attorney based in California since 2003. Her practice is now located in Tustin, CA but represents individuals and entities based throughout the United States and abroad. Phone: (949) 253-0000, Email: info@mintocounselors.com
Testimonials
NM Law is an excellent law firm to work with! Noelle and her team are very thorough and knowledgeable. They explained the estate planning process to us and kept us informed every step of the way. We…
Monique S
I greatly appreciate Noelle’s assistance in making difficult decisions. When she provides counsel I know she puts herself and her family in my shoes. I feel comfortable knowing my attorney has analyzed every angle and leaves out…
Cinda H.
For those of you that are looking for the perfect attorney to handle any of your estate issues, well Noelle is the one for you! I can’t say enough about Noelle! She recently handled a case for…
Suzie F.
One of the most important things you can do for your family is have a good Living Trust done by an attorney you can trust to take care of your business. I highly recommend Noelle Minto, an…
Sandy Z.
Working with Noelle on litigation and transactional matters was truly a valuable experience for me. Not only was she a great communicator with clients and personnel, but zealous and passionate about her clients. I would recommend her…
Darren S.
I’ve known Noelle as a colleague and friend for close to seven years. Working “across the aisle” in the fast-paced and partisan world of LA County politics, I found Noelle remarkable for her ability to quickly grasp…
Kerjon L.
Noelle and her team were professional, courteous and diligent with my case. It was a small matter but they took it as though it was a large one. They reached a settlement quickly and very little effort…
Doug S.
After my mother’s death, The bank locked all her accounts and the insurance company was playing games. Our family lawyer never call me back. I called Noelle for help! My paper work was not in order at…
Randy B.
Noelle is awesome. Handled everything I needed in a timely manner. Very professional!
Tammy W.
I have worked with Noelle on my Estate Planning and was very impressed by the way she handled my business. Noelle was extremely professional and available for all my questions. I would highly recommend anyone looking for…
Zac C.
I have worked with many attorneys, and there are very few that I would ever recommend. Noelle and her team have gone above and beyond to help all of our clients that we have referred to her….
Robert Sousa
I was first referred to Noelle Minto by my family law attorney Mike Monarch to provide oversight on my husband’s Trust conforming with our Post Marital Agreement. Her outstanding legal insights helped me to feel secure that…
Sharon McCubbin
Noelle and Samantha and their team are amazing. They are extremely knowledgeable and professional (they are the best). They have and continue to support me and my family while dealing with my parents Will and Trust. Samantha…
Greg Bishop
I had a great experience with Noelle and Samantha at NM Law. They were fast, clear and got the result we wanted under budget. I am very happy and impressed.
John Arens
NM Law is an exceptional place to work! Our office is located in the City of Tustin, off the 55 Freeway, between the 5 and 405 Freeways. Our main cross streets are Redhill Avenue and Edinger Avenue…
Samantha Smith
The N.W Law team in Tustin Ca was instrumental in achieving a just result in our family trust dispute. We had the privilege of being represented by Samantha Smith and her staff, during one of my saddest…
Herman baldonado
Amazing service. So happy with the whole team!
Mitchell Hilde
So glad to work with this team of professionals
Noelle Minto
As an attorney who has used two other wills & trusts lawyers prior to seeing Noelle, I have a pretty good idea of what to expect and what it should cost. I recommend Noelle to anyone who…
Lynne Boisineau
Highly recommend NM Law. I recently worked with Noelle and her team on my family trust and the process could not have gone smoother. Very knowledgeable and professional. I have since recommended all of my family members…
Nathan Perkins
A very professional approach and action to fulfill our personal requirements
Waldo ortega
My husband and I decided to update our 12 year old trust. We initally had a call with Noelle, and were instantly very comfortable with her approach. Noelle was great to work with, very patient, was willing…
Cheri Ondatje
Vey helpful with good insight to take the proper steps with difficult situations and have my questions answered. Noelle and her team are professional and courteous and great to work with!
Corine Cojocaru
Samantha and the team are professional compassionate and get the job done. She articulates very well what needs to be done. Her and the firm do Probate and Trust at its finest to protect their clients. She…
Silvana Sarkis
I was referred to NM Law after dealing with a myriad of problems in settling a complicated Trust in Riverside County. At the initial meeting, Noelle Minto and Samantha Smith listened to the mess I was in…
Aleathea Rayburn
Love this firm. I’ve worked on a wide range of legal issues with NM law, and the attorneys here are top notch, reasonably priced, and a pleasure to work with. They truly care about each of their…
Colette
Ms. Minto, I want to thank you and your staff for the courtesy extended to us during our family’s pending emergency deadline. Mr. O’Grady spoke to my brother and gave us his best recommendation regarding my father’s…
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