When a person dies, the decedent’s loved ones must deal with the decedent’s property. The first question the decedent’s family members need to ask is: did the decedent have an estate plan in the form of a Will or a Trust?
If the decedent did have an estate plan, the terms of the Will or Trust will govern who is entitled to receive the property. If the decedent did not sign a Will or Trust before passing, the decedent’s property may be distributed to the family members is accordance with the State’s intestacy laws. Wills and Trusts are administered through different methods. The decedent’s heirs and the beneficiaries are entitled to copies of the Will and Trust.
A Will is a testamentary instrument which governs the distribution of the decedent’s property through the probate process. The word probate can seem daunting, but it just means a court-supervised process for distributing a decedent’s assets. The person appointed to handle the estate, called the Executor, files the Will and a Petition for Probate with the court. The Executor must complete the steps outlined in the California Probate Code, which include notifying all the heirs and beneficiaries of the probate, attending a hearing to obtain authority to take control of the estate assets (called Letters Testamentary or Letters of Administration), submitting an inventory and appraisals of the estate assets to the court, paying all known and legitimate creditors, and obtaining a court order to distribute the assets to the beneficiaries.
A Trust, just like a Will, governs the distribution of the decedent’s property. However, administration of a Trust typically does not need to go through probate court. The person in charge of a Trust is called a Trustee. The Trustee distributes the Trust assets to the beneficiaries without prior court approval. Trusts contain provisions on how and when the Trustee should distribute the property to the beneficiaries. Some Trusts are set up to provide the beneficiaries with outright distributions, while some Trusts are set up to distribute the Trust assets to the beneficiaries over a long period of time.
In general, Trusts are favorable to Wills because the probate process is not required. However, Trust beneficiaries and Trustees occasionally end up in court when the Trustee does not follow the terms of the Trust or otherwise commits a breach of the Trustee’s fiduciary duties. If a dispute arises, the beneficiaries should contact an experienced Trust and Will litigation firm without delay.