The terms of a trust generally control its administration, so a careful review of the document is needed before doing anything. Every trust is different. Some trusts are simple and can be administered in a very short time after the grantor’s death, while other trusts are more complex. Litigation can sometimes occur when a beneficiary disputes how the trustee is administering the trust. Disputes can also arise when a disgruntled heir challenges the estate plan contained in the trust. Because of all these factors it is wise to seek legal assistance with the administration of most trusts.
Probate is the court-supervised, legal process that results in the validation of someone’s will or a determination that he or she died without one. Probate begins by filing a petition in the superior court in the county where the deceased person lived at the time of his or her death. A hearing date is then set approximately thirty days following the filing of the petition, and the purpose of the initial hearing is to have the court appoint someone (executor, administrator, administrator with will annexed) to handle the bills and assets of the decedent.
Probate is also when creditors of the deceased can appear before the court and make their claims for payment. Creditors have a fixed period of time to do so and demand payment. The entire process involves the collection of all the assets owned by the person who died and any sale of them, payment of taxes and debts before the executor or administrator distributes the remaining assets as provided for in the decedent’s will or, if there is none, following the rules of intestate succession. Before the assets contained in the estate can be fully distributed and the estate closed, (1) all estate assets have been inventoried, (2) the period for creditor claims must expire and all claims submitted have been paid or otherwise resolved, (3) any assets selected by choice or necessity have been sold, and (4) all necessary tax returns have been filed and any taxes due have been paid.
Not everything is subject to probate. Although probate may be required for a portion of someone’s estate, there are certain circumstances, which will avoid the probate process.
Whether probate is necessary or not can be determined by a comprehensive discussion of the decedent’s assets.