Can I write my will by myself?
Yes. If you are an adult, of sound mind and know the “natural objects of your bounty”, meaning if you know what assets you own and who would receive them, you can write your own will. This is called a Holographic Will. It does not require any witnesses. It only requires that it is dated, the “material provisions” are in your writing and that the document is signed by you.
You can also create a typed “form will”, meaning the entire will is typed out and states your wishes regarding the distribution of your property. A typed Will must be signed by two witnesses who “attest” or sign that they were either present when you signed your Will, or you informed them that this is your Will, and that you signed it.
If I already have a Will, will my estate go through Probate when I die?
California law provides that if the “gross value” of your assets (property) is $150,000 or more at the time of your death and you do not have a Revocable Living Trust, your estate MUST pass through Probate. So if you die and do not have a Will, or you do have a Will but the value of your estate is equal to or greater than the amount above, then your estate MUST pass through Probate.
What is Probate and why is it necessary?
Probate is the court supervised process of transferring the assets of a deceased person to his or her beneficiaries and/or legal heirs. Probate is required when someone dies either having a Will that includes assets of over $150,000 (testate), or without a Will (intestate). If there is a Will, the court appoints the person named in the Will as Executor. If there is no Will, the court appoints an Administrator who will administer the estate.
How long does Probate take?
Probating an estate takes 9-12 months on average. However it may take longer if there are complications such as objection to appointment of the Executor or Administrator. Family disagreements that lead to litigation during administration cause even more delays, sometimes for years. Accordingly, it can be difficult to estimate the time frame due to unexpected complications that can arise.
Does the Executor or Administrator receive more money than others?
The Executor or Administrator gets paid a statutory fee which is set by the California Probate Code. It is the same amount that the Attorney for the Executor or Administrator gets paid. If the Executor or Administrator is also a beneficiary, they will receive only what the Will provides for them to receive. If there is no Will, they will receive their intestate share of the estate as provided under the Probate Code.
What is a Revocable Living Trust?
Your living trust is the foundation of your estate plan. It contains your instructions for your own care and the care of your family should you become disabled, and for the distribution of your assets upon your death. Your living trust allows you to keep your instructions and financial affairs private and assures that your instructions are carried out efficiently without unnecessary judicial involvement.
How often should I update my Trust?
While currently there are no requirements regarding when to update your trust, it is generally recommend that you conduct a review of your trust every three to five years. However, you should always update your trust when there are major changes in your circumstances such as marriage, remarriage, divorce, birth of children, grandchildren or death of one trust owners for a couple’s trust. Additionally, it is also important to check in with your attorney every few years in case the laws have changed to ensure that none of them are affecting your trust. Remember that your trust is a living document. As such, it needs a tune up just like your car does.
What is involved in the process of Trust Administration?
Trust administration is the process of collecting a deceased person’s assets and determining their value, liquidating asset’s or selling real property if applicable, paying off any valid creditor’s claims or debts that are due by the estate and lastly distributing the assets amongst the beneficiaries in accordance with the Trust. Even though Probate is different from Trust Administration, the California Probate Code provides the rules governing Trust Administration.
What powers does a Trustee have?
All the powers of the trustee are as contained the trust document itself, and as provided in the California Probate Code. It usually includes the power to collate (marshall) all assets of the trust at the death of trust owner, insure the property, sell assets, make prudent investments, pay valid creditor claims against the trust (deceased person), administrative bills and expenses, provide information and accounting to beneficiaries, The Trustee is able to make reasonable repairs to the deceased person’s real property, and issue distribution payments to the beneficiaries per the terms of the Trust. This list is not exhaustive.
If I am not the Trustee, how can I obtain information about the Trust and the status of the Trust Administration?
The Trustee is required to keep beneficiaries informed about the Trust and its’ administration. Begin by issuing a request to the Trustee or their attorney. You can request information concerning the assets, liabilities, receipts and disbursements of the trust as well as information concerning what has been done so far in the trust administration process, who has been paid from the Trust assets and information concerning your interest, including your distribution amount. You can also request an accounting and even a copy of the Trust document.