FAQ: Probate, Trust Administration

What is Probate?
What types of Administration are there?
What assets do not require Probate?
What assets require Probate?


Probate FAQ

What is Probate?

• Probate is a court process that supervises the gathering and distribution of a decedent's assets in accordance with a Will, or in accordance with the laws of intestacy if there is no Will.

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What types of Administration are there?

• There are four ways to distribute assets upon one's death. They are:

1. Affidavit of Entitlement: Estate is transferred by Affidavit if the estate is less than $20,000. No Court filing is required.

2. Set Aside: Estate is less than $100,000.00, after deducting mortgages, and is distributed by Court Order pursuant to the terms of a Will, or in accordance with the laws of intestacy if there is no Will. No executor or administrator is appointed.

3. Summary Administration: Estate is between $100,000.00 to $200,000.00. A Probate proceeding is opened, an Executor or Administrator is appointed, Creditors are noticed for 60 days and given the opportunity to file claims, and distribution cannot occur for at least ninety days.

4. General Administration: Estate is greater than $200,000.00. A Probate proceeding is opened, an Executor or Administrator is appointed, Creditors are noticed for 90 days and given the opportunity to file claims, and distribution cannot occur for at least ninety days.

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What assets do not require Probate?

Generally, any asset held in joint tenancy, any asset listing a beneficiary other than the estate, such as life insurance policies and retirement benefits, and any asset held in a living Trust.

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What assets require Probate?

Generally, all assets in the decedent's sole name, including personal assets of the decedent not titled, such as furniture and jewelry, one-half of a decedent's community property if married, and the decedent's interest in any asset held as a tenant in common.

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Trust Administration FAQ

What is a Trust?
What is a Trust Administration?
Do I have to go to Court for a Trust Administration?
What if I have been named as Trustee?


What is a Trust?

A Trust is a legal entity that can own property. A Trustor, the person creating the Trust, typically transfers his or her property to a Trust to avoid probate upon his or her death. Trusts can also be used to protect assets and for tax planning in certain circumstances. The Trustor also names a person to serve as Trustee. The Trustee is a person or persons given the authority to manage the Trust assets. During the Trustor's life, the Trustor often serves as Trustee. A Successor Trustee is named to serve after the Trustor's death or incapacity.

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What is a Trust Administration?

Once a Trustor is deceased, the Trust assets must be administered and distributed pursuant to the terms of the Trust. This can mean that the assets are simply given to specified beneficiaries, or it can be a much longer process where assets are held and invested for the benefit of others, such as for the benefit of a grandchild to use for their college education. The complexity of the administration and the time it takes depend on the nature and extent of the Trust assets and the terms of the Trust.

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Do I have to go to Court for a Trust Administration?

Many Trusts can be administered without having to go to court, which saves time and money. However, if there are issues as to what a certain provision of the Trust means, who the beneficiaries of the Trust are, what assets are part of the Trust, and whether the Trustee is acting appropriately, Trust Administrations can be brought before the Court to make sure that the Trust is being administered properly.

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What if I have been named as Trustee?

If you have been named as Trustee you should consult with an attorney. A Trustee is a fiduciary that is charged with the duty of following the terms of the Trust as well as the law. If a Trustee breaches that duty or errs in distribution, the Trustee can be personally liable for harm that occurs.

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