Estate administration is never simple. It is not just about administering and distributing the estate to one’s surviving spouse and family members. Keep in mind that an estate often includes any bank account, real property, personal property, or insurance policies of the deceased person. Knowing how the probate code will affect all these can be quite complicated. Even more so if your loved one died intestate, which this article will focus on.
When you die without a last will and testament or a trust, the court will refer to all relevant statutes of estate law to make decisions on your behalf. Essentially, state law will determine who gets what and when they get such. This means that the wishes of the deceased person will likely not be taken into account, and such a proceeding can become a public matter.
A common example would be a loved one with two children as heirs. Without specific instructions, the assets of the estate will be divided equally and they can get their share if they are legally considered as adults. In reality, however, this is not as simple.
When you die without a valid last will and testament, the court will be appointing the guardian who will raise your minor children and manage their money until they become adults. Aside from the fact that the guardian they appoint could be a total stranger, they often charge a lot for their services.
Matters between debtors and creditors
Once your accounts and property go through the probate process, essentially everyone will know, including credit card companies, car loan companies, and other mortgage companies who could seek payment for what is owed at the time of death. Aside from valid creditors, fake creditors or predators would usually also come forward and seek payment for an inexistent debt. A Calabasas estate planning attorney can help with these legal issues.
Last wills and testaments
If you were able to create a will before you pass away, your accounts and property will be brought to the probate court but will distribute to your surviving spouse and family members once creditors are paid.
A will allows you to designate an estate executor or personal representative who shall be managing and administering accounts and property that are not held in a trust. An executor of a will is also in charge of distributing assets of the estate to any heir that you named. While you can specify who gets what, the fact that the court will oversee the process makes it difficult for your beneficiaries to maintain full privacy.
Revocable living trusts
Setting up trust documents involves naming a trustee (who shall be managing your affairs) and specifying instructions on transferring accounts and property held in trust.
Since trusts are not public legal documents, they are useful in maintaining privacy. Specifically, setting up a trust will allow your loved ones to maintain their privacy after death by avoiding probate issues. As long as the revocable living trust is properly funded, your loved ones can avoid probate procedures and paperwork at the time of death. A Calabasas estate planning attorney can explain this in more detail.
Seek legal assistance
The legal process for transferring estate property and naming an heir who will inherit estate assets (or someone who will carry out the wishes of a decedent) is not easy. While making a will can indeed allow one to distribute assets of the estate to heirs, sometimes such inheritance can still be probated. Additionally, when someone dies, a loved one may contest a will (bring it to court for a supposed lack of validity). Depending on the circumstance, the court could decide to administer the estate of the deceased as if he or she died intestate.
At the same time, however, there are instances where having an executor of a will becomes more advantageous. As such, it is advisable to consult with a Calabasas estate planning attorney for legal advice.
If you need an attorney from a law firm specializing in the above, call us. Our Calabasas estate planning attorney at Moschetti Law can help with your estate planning needs and need for legal representation.