Administering an Estate through Probate With or Without a Will

Apr 25, 2017
Estate Planning Living Trusts Purpose of a Living Trust Trust Administration Trust Benefits Trust Management & Settlement Trust Process

Only a Trust Avoids the Probate Process

probate processIn California, a probate process will need to be initiated in order to administer the estate if the decedent passed with no estate planning at all or only a Will. Probate is a Court-Supervised process that involves a 6-9 month minimum process (more often 15 months or more) in order to properly transfer assets from a decent to beneficiaries.

Please remember, a Will alone does not avoid probate. Should a decedent pass with only a Will (and no Trust), the Will must be “probated” with the Court. Only a Trust avoids the probate process. Most importantly, the fees associated with probate are directly governed by state statute. Fees are computed directly in accordance with the gross size of the estate. However, attorneys are often permitted to charge additional fees for “extraordinary services,” and you might be surprised as to what qualifies for “extraordinary services.” On the bright side, the attorney is not paid until the very end of the probate process, when the beneficiaries receive their rightful remaining share of the decedent's estate.

The exception to this is where the probable estate falls below certain thresholds established under state law. For example, an estate in California — with or without a Will — that is valued at less than $150,000 including Real Property valued at no more than $50,000 (on its own) may be distributed outside of the probate process. Assets left directly to legal age persons through a valid beneficiary designation, such as an IRA, Annuity, Life Insurance Policy, Transfer on Death (TOD), or Pay on Death (POD) beneficiary listed on a bank account, are not counted or included in the thresholds mentioned above. This process is often known as summary probate or settlement under small estate statutes.

Administering a Trust Estate Outside of Probate

trust administrationAs referenced above, only an estate plan with a Trust will avoid a probate process. However, estate administration will be necessary even if there is a Trust and probate is being avoided. Certain documents will need to be filed with the county where the decedent resided, and additional documents will need to be executed where the decedent had bank accounts/retirement accounts/etc. in order to legally and smoothly pass assets to designated beneficiaries within the decedent's Trust. AmeriEstate trust administration can and will assist your successor trustee throughout the entire process.

Although administering an estate outside of probate is far less complicated and time consuming than a full probate process, a qualified attorney should be consulted in order to make sure all required documents are rightfully executed and processed. Failure to properly administer an estate can lead to costly tax consequences to beneficiaries in the future. Our firm can assist those in need of administering an estate (usually a trust) outside of probate. Fees for these services are always much less than statutory fees associated with a California probate process.