Before we address the topic at hand, we should briefly explain why a living trust can be preferable to a last will in many instances. Generally speaking, if the value of your estate exceeds $166,250, and you use a will to state your final wishes, the full probate process would be a factor.
The executor that you name in the document would handle the estate administration chores, and the court would provide supervision. Probate can take close to a year even if there are no especially complicated circumstances, and no inheritances can be distributed during this interim.
When you hear about this arrangement, you may ask about alternatives, and a living trust would probably be the right choice. With this type of trust, you do not have to worry about surrendering control of the assets, because you can act as the trustee and the beneficiary while you are alive and well.
In the document, you name successors to assume these roles after you are gone. When the time comes, the successor trustee would follow your instructions and distribute assets to the beneficiaries. These distributions would not be subject to probate.
If you use a living trust as your primary vehicle of asset transfer, the successor trustee may be a family member that does not have a lot of experience dealing with legal devices. For this reason, an attorney can provide very valuable assistance during the trust administration process.
One situation that we often see is the matter of property that was never conveyed into the revocable living trust during the life of the decedent. To account for this, you could include a document called a pour over will.
This would state your desire to have this property “poured over” into the living trust. While this is a prudent safeguard, the transfer would still be subject to the probate process.
Here in California, there is another step that can potentially be taken to account for property that was never formally conveyed into a living trust.
A Heggstad Petition can be filed in our state. With this type of petition, a representative of the estate would formally ask the court to recognize that the decedent intended to convey certain property into the trust.
One good form of documentation would be a schedule that was signed by the grantor of the trust that lists the property in question. A pour over will would also be useful, because it would serve as proof that the individual that passed away wanted all of their property to be held by the trust.
Learn More About Trust Administration
We have provided a basic overview in this blog post, and you can learn a whole lot more if you absorb the information that is contained within our special reports. Our attorneys have prepared a number of reports that specifically focus on this topic, and they are available to you free of charge. To obtain access, simply visit our trust administration reports page.
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We are here to help if you would like to discuss your legacy goals with a licensed attorney. You can potentially work with us to devise a plan that is custom crafted to suit your needs. While the planning process is underway, we can be engaged to provide assistance during the estate administration process.
In this manner, your loved ones would have the perfect resource ready to provide the appropriate guidance when the time comes.
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