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.
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 signed adequately by two witnesses who are over the age of 18 and are not related to you.
Caution – A WILL DOES NOT AVOID PROBATE!
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 are the one who transferred the assets into the Trust, and you are 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.
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.
Although both are instruments where you indicate how you want your property to be 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.
This is another commonly asked question, and the typical (and accurate) legal 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 is 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.
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 the 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 an attorney 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 your 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.