Q: What is a Trust?
A: There are many different types of Trusts, but their common feature is that they all indicate how you want the trust assets managed and distributed to the beneficiaries.
The most popular type of trust is called a Revocable Living Trust. As indicated in the name, a Revocable Living Trust can be changed or revoked entirely. It is called a “Living” Trust because it is created while you are alive. When the Trust is created you are both the “Grantor” and the “Trustee.” You’re the one who transferred the assets into the Trust and you’re in control of your property. You will also designate “Successor Trustees” to be in charge of your assets when you are incapacitated and after you pass away.
If you have few assets and you don't own a home, then the Probate process should be relatively straight forward and inexpensive. However, if you own a home or you have property valued in excess of $150,000 then you should have a Trust. California lawmakers have imposed a minimum statutory fee that can be charged by attorneys in Probate cases. The fee schedule can be found at California Probate Code Section 10810 and is illustrated in the table below.
As you can see, these statutory fees are owed to attorneys on a sliding scale based upon the value of the decedent’s assets. It is important to note that encumbrances (debt) on the property are not taken into consideration when calculating the attorney’s fees. Additionally, this schedule does not take into account the Personal Representative’s (aka Executor) fees or additional compensation for extraordinary services that the Probate Court may choose to award.
With a Trust your assets will be managed by your Trustee and distributed to your beneficiaries pursuant to your instructions. You determine who your Trustee and successor Trustees will be and the order of succession. You can easily change your Trustees by preparing an Amendment to your Trust. Your Trustee may be entitled to a fee but you decide how much the fee will be. In addition to freeing your loved ones of the expenses and burdens of Probate, you obtain the benefit of privacy by preventing your affairs from becoming public record in the Probate Court files. Finally, in almost all cases, the cost to prepare a revocable living trust is much less than the expenses of Probate.
Value of Estate Attorney’s Fees
Caution – A WILL DOES NOT AVOID PROBATE!
Q: How much does Probate cost?
A: California lawmakers have imposed aminimum statutory fee that can be charged by attorneys in Probate cases. The fee schedule can be found at California Probate Code Section 10810. It is important to note that these fees are imposed on the GROSS value of the assets rather than theNET value. Therefore, encumbrances (debt) on the property are not taken into consideration when calculating the attorney’s fees. Additionally, this schedule does not take into account the Personal Representative’s (aka Executor) fees or additional compensation for extraordinary services that the Probate Court may choose to award.
Q: What is Probate?
A: Probate is the court supervised process of wrapping up one's affairs following their death. During this process assets are inventoried and appraised, creditors are notified of the death, assets may need to be liquidated, debts are paid, and after attorney's fees and court costs are paid any remaining assets are distributed to the beneficiaries. Because this is a court supervised process paperwork must be filed with the court, affected parties must be served, and appearances are made before a judge. Unless sealed, all documents filed with the court are public information.
One of the benefits of having a Trust versus a Will is that assets in a Trust do not go through Probate. This is because ownership of your property is transferred into the Trust and you tell the Successor Trustee how to manage and distribute the assets. A court does not supervise the administration of the Trust. The only time your Successor Trustee should need to go to court is if there is ambiguity in the Trust document or if your beneficiaries contest the terms of the Trust.
Q: What are the differences between a Will and a Trust?
A: Although both are instruments where you indicate how you want your property distributed, assets held in a Trust are not subject to Probate. If you only have a Will, then your remaining property will go through the Probate process and your Will becomes public record. Conversely a Trust is a private document. Since it is not recorded with the Court it can’t be viewed by the public, or by snooping family members.
Q: Do I need a Trust?
A: This is another commonly asked question and the typical (and accurate) response is “it depends.” More completely, the answer depends on how expensive and complicated the Probate process will be after you pass away, and whether or not you want to prevent your family from dealing with the stress that's involved.
Without a Trust your assets may be subject to Probate before being distributed to your spouse or heirs. Probate can be a time consuming and frustrating process that can take from 9 months to several years and often requires the expertise of an attorney.
For your convenience click HERE to view the California Statutory Will Form that is provided by the State Bar of California. Should you choose to use this form, please be careful to have the Will properly signed by two witnesses who are over the age of 18 and are not related to you.
Q: What is a Will?
A: A Will is a document where you indicate how you want your property distributed at your death. In a Will you designate who your beneficiaries and Personal Representative (a.k.a., Executor) will be. If you have not designated a person to serve as your Personal Representative in a Will, the Probate Court will designate a person to act as the Personal Representative with the authority to administer your probate estate.