The Riverside probate attorneys at our firm frequently run into the same set of misconceptions when we interview new clients. One of them is the idea that a last will is the most logical choice for persons without substantial wealth. It can seem like a last will is a very simple, straightforward document that facilitates quick and easy transfers to the heirs that are named in the document. However, there are some limitations and complications lurking right beneath the surface.
The administration of an estate in Riverside and San Bernardino Counties can be quite complicated. If you have a last will and testament, you are known as the Testator. The person who carries out your wishes is know as the executor or personal representative. If a person dies without a will, the person who will be appointed by the Probate Court to manage his or her estate is known as the administrator.
Many people assume that the executor can just undertake to distribute the assets as set forth in the will. In fact, the administration of an estate must be supervised by the Probate Court. The will first needs to admitted to probate. The death of the testator must be published in certain approved newspapers so that relatives and creditors can be made aware of the testator’s death. Relatives and other beneficiaries designated in the will must be made aware of the probate process and known creditors must receive notice of the probate. An inventory of the assets must be made and an accounting of all receipts and distributions during the probate administration must be given to the court and those persons entitled to it. When all this is completed, the judge can approve the actions of the executor or administrator and give him or her to distribute the remaining assets pursuant to the terms of the will.
Probate is not free, and this is another thing that many people do not take into consideration. The personal representative is entitled to payment for his or her time and effort. The attorney hired by the personal representative is entitled to statutory fees as set forth in California law as well as extraordinary fees to deal with tax issues and the sale of real estate and business. All of these costs are reducing the value of the estate, so the money is essentially coming out of the pockets of the heirs.
This process takes time. About the fastest a probate administration can be completed in the Riverside or San Bernardino Probate Courts is eight months, with the average time to complete a probate right around one year. Many probates taking much longer. The longest probate in California history was for the probate of Marilyn Monroe’s estate, which lasted eighteen years.
Revocable Living Trusts
If you desire to to sidestep these other probate pitfalls, a very viable alternative is readily available. You could engage one of our Riverside Probate lawyers to help you establish a revocable living trust. As the name would suggest, if you ever wanted to revoke the trust while you are still alive and take back direct personal possession of the assets, you could do so. You could also amend the trust at any time.
The creator of a revocable living trust is called the trustor, and the trustor will typically serve as trustee and sole beneficiary throughout his or her life. In the trust agreement, a successor trustee is named, and the trustor will also name a remainder beneficiary or beneficiaries to receive the remaining assets at the trustor’s death. It should be noted that multiple beneficiaries could be added. Plus, the trustee could be empowered to administer the trust if the trustor was to become incapacitated.
To protect the spendthrift heir, you could instruct one of our Riverside probate lawyers to include specific verbiage in the trust agreement with regard to the nature of the asset distributions. For example, you could allow for designated monthly distributions to the beneficiary or leave it to the discretion of the trustee to determine the needs of the beneficiary.
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Dennis Sandoval
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