If a client has not done any estate planning or established a Will, the property will likely pass through the probate court system. Probate is a court-supervised procedure in which a decedent’s assets are passed to those who are legally entitled, either through the decedent’s Will or as directed under the California Probate Code. In utilizing the probate court system, one must petition the court to be appointed as the personal representative. Once appointed, that personal representative will “marshal” (gather) all of the decedent’s assets in order to distribute those assets, either as directed by the decedent’s Will or by the California Probate Code. Throughout the probate process, the personal representative will be required, in many instances, to obtain court approval for actions taken on behalf of the estate and prepare detailed accountings for submission to the court. In contrast to the trust administration process, the probate process is a matter of public record. It is also quite lengthy, with the average probate lasting approximately one year. The attorney’s and representative’s fees are set by California statute and tend to be very high. For these reasons, it is advantageous for clients and their loved ones to avoid probate by establishing a living Trust.
