Probate

Inheritance FAQ >

What Is a Will?

What Is a California Will?

A will is a legal document in which a person, the testator, states his or her wishes for the distribution of property at death. If the person has young children, the will usually also nominates guardians for them--someone who would raise the children if the parents couldn't. A will also names an executor, also called a personal representative, who is the person who will settle the estate, and, if a probate is necessary, be appointed as the legal representative of the estate until it is distributed to the will's beneficiaries.

A will doens't need a lot of magic words to be valid. But the person making the will must:

understand what he or she is doing (this is called legal capacity)
identify himself or herself
name beneficiaries for his or her property, and
sign the will in front of witnesses, according to state law.

Some states allow a person to handwrite a will (this is called a holographic will), but it's better to type one out. That way, it's easier to see if someone else has tried to change the will.

Where Are Wills Stored?

If you want to find the will of soemone who has died, where should you look? There's no official place for people to store their wills, and there's no state registry to store your will before you die. Most people store their wills with their other important papers, sometimes in a safe deposit box, sometimes in a fireproof safe or cabinet in their homes, sometimes just in a box with other important papers.

Ideally, you want to find the original, signed will, not a copy. If all you can find is a copy, you can submit that to the probate court and explain to the court that you couldn't locate the original. If no one else comes forward with an original will for that person, and no other evidence can be found that another will was created, the court may accept a copy of a will.

If, after a thorough search, no one can find a will at all, you'll have to conclude that there is no will. In that case, the person's estate will be subject to the state's rules about how inherits when there is no will.

When a person dies and leaves behind a will, whoever has possession of the will is supposed to submit it to the probate court in the county where that person died. This is sometimes called "lodging" the will. Once lodged, the will becomes a public record, to be read by anyone who's interested in what it says. Here's a link to your state's probate courts.

Even though the law requires that a will be submitted to the local probate court, there are really no actual penalties for not doing so, especially if the estate is too small for probate to be required. If an estate does have to go through probate, though, filing the will is the first step in getting that process started.

How to Read a Will

It's not like the movies. Hardly any families have a meeting with a lawyer to read the will aloud. Instead, reading a will is like reading any legal document--take it slow, look up words that you do not know, and focus on what the document actually says, as opposed to what you wish it would say. When you are reading a will, here's what you need to find out:

Who is named as the executor or personal representative? This is the person who is in charge of settling the estate.
Who are the beneficiaries? These are the people who inherit the property.
Is there a survival requirement? Most wills require that beneficiaries must survive the deceased person by a certain period of time, often five or 30 days, before they can inherit.
Are there any special conditions that need to be met before the estate can be distributed? Does the will require, for example, that the will-maker's son enroll in a college degree program before he can receive his share of the property?
Was the will properly signed? You need to make sure that the will was properly signed in front of witnesses, meeting the state's requirements.
Are there any codicils to the will? A codicil is a separate document, signed later, that changes some of the terms of the will.

How to Settle an Estate When There's a Will

If the value of a person's estate is above a certain limit, called a "small estates limit," their estate must go through a probate proceeding before assets can be distributed to the people who inherit the assets. This is true whether or not there is a will.

Probate is a process that takes place in court. The purpose of probate is to make sure that a deceased person's wishes are respected and that their property is distributed as directed by their will. The person named in the will as the executor, or personal representative, is appointed by the court. After that, the executor is in charge of protecting the estate's assets, identifying and valuing them, paying the debts and expenses of the deceased person, and, in the end, distributing the assets as directed by the will.

If a person left a will, but dies with a small estate, as determined by each state, the estate does not need to go through a formal probate proceeding. Instead, the executor or personal representative can file some simple paperwork and then pay the last bills and expenses, identify the property, and distribute it to the beneficiaries. (Each state's process is a little different.)

When a person dies without a will, or if the will cannot be found, then the estate will be distributed to their heirs, as determined by state law. These laws are called intestacy statutes. For example, in most states, if a person dies and leaves behind no spouse but two living children, those children would inherit the estate, in equal shares.

Inheritance FAQ >

What is a Living Trust?

A living trust is a legal document that holds property transferred by someone, called the Grantor, for the benefit of someone, called the beneficiary, that will be managed by someone, called the Trustee. The Grantor, beneficiary, and Trustee of a typical living trust are all the same people because the primary purpose of a living trust is to manage a person's assets for them during their lifetime, and allow them to pass that property to their surviving spouse, or children, without having to go through a court-supervised process, called probate.

During the Grantor's lifetime, the assets held in the living trust, often their house, their investment accounts and their larger bank accounts, can be used for that person's benefit in exactly the same way that the person was able to use those assets before they were placed in the trust. But, at their death, the trust agreement will dictate what happens next, distributing the trust's property as directed by the document.

Because the assets that have been transferred into the trust are legally owned by the trust (and not by the person who contributed those assets), the Grantor's estate will not have to go through probate because it will fall under a state's small estates limit, if their biggest assets are held in the trust and only a few, small assets are held in their individual names. Just having a living trust, though, isn't going to prevent a probate if the Grantor forgot to actually put their biggest assets (house, brokerage accounts, and so on) into the trust. It's entirely possible for someone to create a trust, ignore it for the next thirty years, and die with all of the major assets held in their own names, and not in the name of the trust. In that case, a probate will be required before any of that person's assets can be distributed to their beneficiaries.

For example, if a person whose home, brokerage account, and savings account had been transferred into their living trust, dies, only those assets that they held in their own, individual name would count towards their state's small estates limit for probate. If all that they owned outside of the trust consisted of their car, with a Blue Book value of $3000, a checking account with $ 4,000, and their household possessions, their estate would not be subject to probate and could be distributed to their beneficiaries without a court order and without the cost and delay of probate. However, if that same person never transferred their home, their brokerage account or that savings account into the trust, all of those assets would have to go through probate before they could be transferred to the trust's beneficiaries.

Is a Trust Registered or Stored Somewhere?

After someone dies, the family needs to locate that person's estate planning documents. Much to many peoples' surprise, there's no official state registry for this kind of thing where people send in their important documents before they die. Instead, people keep their Wills and trusts in safe places -- sometimes in a safe deposit box at the bank, sometimes in a fireproof safe or cabinet at home, and sometimes just in a special box or drawer at home.

If you are not certain where such documents are located, you just have to keep looking until you find them. If you can't find them, you may finally conclude that they just don't exist. If that's the case, then the person will have died intestate, which means that state law determines who inherits their property.

If you're not certain whether or not such documents exist, then you've got more of a detective project on your hands. There's no external thing you can find that will tell you for certain that a Will exists--you either find one or you don't. But in the case of a living trust, your clue to the existence of a trust will be account statements or property deeds that show the ownership of the account to be something like this, "Nila Smatherton, as Trustee of the Nila Smatherton Trust." If you find assets that are held by a trust, you'll need to locate the trust document to be able to transfer them. If you do find the trust document, your next step is to read it. If you ultimately cannot find the trust document, you'll need to work with a local estate planning attorney to transfer the assets via a court order. Here's a link to your local probate court.

What to Look For When Reading the Trust

Here's what you need to figure out when reading a trust:

Who is named to serve as successor Trustee? This is the person with the legal responsibility to distribute the trust's assets as directed by the trust document.
Who are the trust beneficiaries? These are the people who will receive the trust's assets.
How are the beneficiaries supposed to receive their assets? Often, trusts will distribute assets to adult beneficiaries "outright and free of trust", which is lawyer-speak for giving those assets directly to them, with no strings attached. Children, or adults with special needs or issues managing money, will often be given assets to be held in trust to a certain age (like 30) or, perhaps, for their entire lifetimes.
What assets are owned by the trust? As asset has to legally transferred to a trust for that trust to be its legal owner. To determine what the trust owns, you'll be looking for deeds and account statements that show ownership like this, "John Doe, as Trustee of the John Doe Family Trust."
Was the Trust signed and notarized? An unsigned trust, or one that wasn't properly notarized is not legally valid.
Are there any Trust Amendments? A trust amendment changes a section of a previously signed trust.

Trust Administration

To settle an estate that's held in a living trust, there are a series of steps that the Trustee will need to take. The beneficiaries and heirs will need to be notified of the death of the Grantor; the trust's assets will need to be identified and valued, the decedent's debts and expenses will have to be paid, the trust will need a tax identification number, a trust tax return may need to be filed, and, in the end, the trust's assets will need to be distributed to the beneficiaries.

Inheritance FAQ >

Executor, Trustee: What's the Difference?

An executor is the person either appointed by the court, or nominated in someone's Will, to take care of the deceased person's financial affairs. In some states, this person is called the personal representative.

If there's a probate court proceeding, the court officially appoint someone--usually, the personnamed in the deceased person's sill--as executor. The court gives the executor a document granting authority to administer the estate, which is called letters testamentary in most states.

If there's no probate proceeding (because the estate is too small to require one), then the person named as executor still takes care of things, but doesn't have official authority from the court. If required, the executor can provide a copy of the deceased person's will and a document stating that there is no probate pending in the state. Click here to read about the small estates procedure in caate.

Here are the sort of things an executor does:

Secure and organize the deceased person's property, including a house and furnishings.
Make an inventory of what's in the estate.
Value the assets in the estate.
File the deceased person's last tax returns (and any back taxes)
Pay the deceased person's remaining bills.
If there's a probate, work with the estate's attorney to give the court the information it requires.
Ultimately, distribute the estate's property to the beneficiaries or heirs.

A trustee is the manager of the property held in a trust. The successor trustee is the person named in the trust document to take over the job of managing the trust after the person who established it, the grantor, dies or is unable to continue as trustee.

Here are the sort of things a trustee does:

Identify and gather all of the trust's assets.
Appraise or otherwise value the trust's assets.
Notify heirs and beneficiaries as required by state law.
Pay the trust's bills.
Get a tax identification number for the trust.
File the trust's tax returns, if required.
Ultimately, distribute the assets held in trust to the trust's beneficiaries.

Often, the trustee and the executor are the same person. But that doesn't mean there's no difference in their jobs. In practice, it boils down to this: If an asset is held outside of a trust, in the decedent's individual name, then the executor is in charge of it. If an asset is held in trust, then the trustee's in charge.

For example, if the Kate S. owned a brokerage account and transferred it to the trust before she died, the account's official legal owner would be "Kate S., as Trustee of the S Family Trust." After Kate's death, the successor trustee would be able to continue managing that account after giving the company a copy of Kate's death certificate and a copy of the trust document. But if Kate had never transferred that account into her trust, and it was owned in her name alone, it would be the executor's job to deal with that account, not the trustee's.

Inheritance FAQ >

How to Order Certified Copies of a Death Certificate

After someone dies, certified death certificates become necessary and useful documents. You will need them, for example, to record the deeds necessary to change title to real property, to claim life insurance, to file estate tax returns, and to claim pensions or any other benefit available as a result of that person's death. This makes perfect sense, since the companies holding these assets do not want to distribute them unless they are certain that the decedent has actually died.

The funeral home that prepares a body for burial or cremation will usually order copies, and they'll ask you how many you need. For most estates, 5-10 copies is plenty.

But if you need more as the process of administering a trust or estate goes on, you can order more yourself by contacting the state or county's vital records office. Usually, the county office can provide you with the certificates more quickly than the state's office can. You'll want to contact the office in the county where the person died.

Different states call this office different things; in Texas, it's called the "local registrar"; in California, it's called the County Recorder's offfice. The cost to receive certified copies varies by state, and sometimes, by county. In Texas, the cost is $20 for the first copy and 3$ for each additional copy. In California the cost is $21 per copy. Many states require you to be an authorized individual, usually to a family member, funeral home director, a person authorized to receive a death certificate as a result of a court order, an executor, or an attorney to order certified death certificates, to avoid fraud.

Click here for a link to a website that shows you how to apply to each state's office.

Once you find the proper office, you'll probably need the following information to request a certified copy of death certificate:

Name of deceased

Date of death

City and county of death

Last address

Inheritance FAQ >

What's the Difference between Real and Personal Property?

Many states make a distinction between personal property and real property when they set out the rules for which estates are small enough for either an Affidavit procedure or a summary probate procedure. What's the difference?

Personal property means things that people own that are moveable, as in not fixed to the land. Examples are: cash, stocks, bonds, cars, vehicles, clothes, furniture and furnishings.

Real property means things that are land and things affixed to the land. Examples are: houses, and other buildings, as well as the property underneath them and the rights associated with the land, like water, mineral, and other rights.

Inheritance FAQ >

What States Recognize Common Law Marriages?

Some states permit "common law" marriages. These states recognize a legal relationship between two people who lived together as if they were married, and held themselves out to the world as if they were married, but never legally were married under that state's laws. This can be relevant when a person dies without a Will, if their surviving partner wants to inherit as that person's spouse under state law, but doesn't have a marriage license.

Here are the states that recognize common law marriages now, or did in the past and still will honor such marriage if a relationship began before such common law marriages were abolished by state law:

Alabama (recognized by the courts, not expressly allowed by state law)

Colorado (after September 2006)

District of Columbia

Florida (if relationship began beore 1968)

Georgia (if relationship began before 1997)

Idaho (if relationship began before 1996)

Indiana (if relationship began before 1958)

Iowa

Kansas

Montana

New Hampshire

Ohio (if relationship began before 1991)

Oklahoma (recognized by the courts, not expressly allowed by state law)

Pennsylvannia (if relationship began before 2005)

Rhode Island (recognized by the courts, not expressly allowed by state law)

South Carolina

Texas

Utah

Inheritance FAQ >

Do I Need to Hire a Probate or Trust Attorney in California

If you are settling either a probate estate or administering a living trust in California, you may want to hire an attorney to advise you during the process. Even in an estate that's simple and in which everyone gets along, it is still, for most people, an unfamiliar process. Having an experienced professional to help steer you right is worth it, often.

For one thing, it's helpful to work with someone who has done it before. There's nothing like having the benefit of hindsight at the beginning -- knowing before you start what's likely to go wrong along the way can prevent you from making simple, and common mistakes, such as not keeping good enough records, not gathering and identifying estate assets properly, or not communicating appropriately with beneficiaries and heirs.

For another, if you are the nominated executor or Trustee, you can incur personal liability if you fail to pay debts or taxes, or if a beneficiary feels that you've acted unethically or unfairly, so it is a good idea to hire an attorney to represent you and inform you of your duties and liabilities along the way.

Lastly, if you do end up opening a probate, or being sued by a beneficiary or heir, you'll appreciate a professional to represent you, file documents, and generally have your back.

Most trust and estates attorneys will charge for their time by the hour. In some states, probate fees are a percentage of the value of the estate being probated, in others, lawyers charge an hourly fee. Make sure that you understand how you will be charged and when you are expected to pay. If you are asked to pay a retainer up front, make sure you understand what that retainer covers and when/if you'll be expected to pay more.

What Probate Lawyers Do

If you need to open a probate proceeding in California, you either need to represent yourself or hire an attorney. An experienced probate attorney can help you with the following parts of the process:

1) Reading the Will and explaining what it means.

2) Filing the required court forms to begin the process and have an executor appointed.

3) Getting a tax identification number for the estate.

4) Notifying the estate's creditors.

5) Identifying and valuing the estate's assets.

6) Preparing an inventory that will be filed with the court.

7) Filing a Petition for Final Distribution when the probate is to close.

8) Drafing a Court Order distributing the estate's assets to the heirs.

What Trust Administration Lawyers Do

If you are the Trustee of a living trust, you are probably not going to have a file anything in court. But, even so, an experienced trust administration attorney can help you with the following things:

1) Telling you what the trust says.

2) Preparing and sending out required notices to beneficiaries and heirs.

3) Assisting you in identifying, safeguarding, and collecting the trust's assets.

4) Getting a tax ID number for the trust.

5) Helping you establish a good record-keeping system.

6) Helping you properly value the trust's assets.

7) Advising you how how to communicate with the trust's beneficiaries.

8) Assisting you in the distribution of the trust.

What Makes an Attorney a Good Fit for You?

Like any other professional that you might hire, finding a good lawyer is part networking, part commonsense, and, sometimes, part luck.

A good place to start is to ask friends, family, and people you know from work, or church (or mosque) if they can recommend someone who they've worked with in the past. You are looking for someone with at least 5-10 years of experience doing probate or trust administration work.

Probate and trust work is highly specialized, so don't hire a generalist, or a corporate lawyer who is interested in gaining experience (on your dime). Look for someone who just does work on trusts and estates. Ask them how many years they've specialized in trusts and estates law and how many cases they've filed in probate court, or how many trusts they have helped administer.

Probate and trust work is also highly regional -- an experienced attorney who knows the probate court in your area will be able to work more effectively with the judges and lawyers in that courthouse. Also, a local probate or trust attorney will know that court's local rules, and that can save you time and money as your case goes through probate. Local rules can be a real headache for out of town lawyers, who don't know exactly how a particular judge expects papers to be filed or arguments to be presented.

Finally, trust your gut. Settling an estate can take 6 months to a year. Find someone that you trust and that you feel that you can work with easily. Do they answer your questions? Do they answer your phone calls? Are they careful? Do they have the social skills needed to appease annoyed, or angry, beneficiaries? Can they explain the relevant law in a way that doesn't make you feel stupid? Do you understand how you are being charged and what you are paying for? All of these things matter. There are lots of lawyers out there. Don't settle for someone who is careless, arrogant, condescending, or too busy to give you the attention that you deserve.

If you're going to pay for a probate or trust administration lawyer, make sure you get a good one. Just because someone is a lawyer does not mean they are knowledgeable about probate law. Do your homework before you hire someone.

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