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Understanding probate and the benefits of a living trust

Probate is a process of distributing assets to beneficiaries upon the death a person. The process is started and organized by the executor named in the deceased person's will or possibly by another family member if there is no will. The probate court will work to resolve disputes between family members, and the final disbursement of assets must have court approval. The probate process in California comes with many statutory fees and can become very expensive if the decedent's estate is complex.

A will is not sufficient to avoid the probate process. Instead, the will serves as a legal guideline for the executor and the court. In order to avoid or minimize probate, assets must be transferred into some kind of trust. Any assets not in a trust are still subject to the probate process.

One of the best types of trusts for this purpose is the revocable living trust. This type of trust allows the individual to remain in control of all of the assets in the trust and the trust itself until his or her death. They can also modify the trust at any time. This includes such activity as adding or removing assets from the trust or changing the beneficiaries. As long as the person is still legally competent, they remain in control. The trust then becomes irrevocable upon their death and assets in the trust are automatically disbursed to the beneficiaries according to the wording of the trust.

An estate planning attorney can assist a person in establishing a living trust and discussing any advantages to leaving assets out of the trust for probate. If a probate process is needed, then an attorney can assist an executor in resolving the process as efficiently as possible.

Source: The State Bar of California, "Do I need estate planning?", September 19, 2014

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