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When a loved one passes away, it can be overwhelming for the family members. They must deal with the grief, loss, and sadness but also with the daunting task of wrapping up the loved one’s affairs. Oftentimes, the family simply does not have the time, knowledge, and experience necessary to complete the task. The following is an article that outlines estate settlement issues and processes, designed to help point family members in the right direction and help them through this difficult time.

How the family members should proceed will depend upon what type of estate planning the decedent had established before their death. Hopefully, the decedent had been properly advised and proactive in their approach to estate planning. If the decedent had been advised as to the benefits of establishing a living trust and had diligently funded and updated the trust, administration of the estate should be a relatively smooth, easy process for their loved ones. With a living trust in place, the estate will be administered through a Trust Administration.

Trust administration is a private process that can be done through an attorney’s office, usually requiring no court involvement. The decedent’s property will be transferred pursuant to the instructions left in the trust document. This process is advantageous for a number of reasons. Without the need to involve the court, we avoid the delay and high fees associated with probate. We also avoid the privacy concerns associated with the creation of public documents.

Although a trust allows for a more informal process in passing the decedent’s property, it is important to know that there are time frames, legal processes and procedures for managing a trust upon the death of the creator of the trust. So, while many people believe that when a person who has a trust passes away, their property simply passes to those named in the trust, in actuality there are many very important administrative tasks that must be completed. Issues that need to be resolved during the administration include:

  1. What assets were owned in the name of the decedent’s trust;
  2. Was the decedent single or married;
  3. If the decedent was married, does the trust provide for estate tax planning at the first death;
  4. Preparing and sending out legal notifications;
  5. Following the instructions of contained in the trust;
  6. Properly re-titling and distributing the assets; and
  7. Estate and income tax implications and deadlines.

When establishing the trust it is important to choose the right attorney to work with. Similarly, when administering the estate it is equally important to choose the right attorney to work with. Because the analysis and decisions that need to be made during the administration process are extremely important, it is crucial that the family members work with an attorney who is knowledgeable and experienced in this very specialized area of law. The decedent’s family should derive comfort from knowing that they will be well taken care of during this difficult time and the process will be smooth and painless.

If a client has not done any estate planning or has established a Will, the property will likely pass through the probate court system. Probate is a court supervised procedure in which a decedent’s assets are passed to those who are legally entitled, either through the decedent’s Will or as directed under the California Probate Code. In utilizing the probate court system, one must petition the court to be appointed as the personal representative. Once appointed, that personal representative will “marshal” (gather) all of the decedent’s assets in order to distribute those assets either as directed by the decedent’s Will or by the California Probate Code. Throughout the probate process, the personal representative will be required, in many instances, to obtain court approval for actions taken on behalf of the estate and prepare detailed accountings for submission to the court. In contrast to the trust administration process, the probate process is a matter of public record. It is also quite lengthy, with the average probate lasting approximately one year. The attorney’s and representative’s fees are set by California statute and tend to be very high. For these reasons, it is highly advantageous to avoid probate by establishing a living trust.

The probate and trust administration processes can be complex, with each process having particular nuances and rules which must be adhered to. Seeking the assistance of experienced legal counsel is highly recommended. With the right attorney, you can be assured that those left behind are provided the service, care, and expertise required to make the process as smooth and easy as possible.

More information on estate settlement is available here.

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