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Probate is the court process of settling someone's estate after the death of that person. It's not always necessary. Just because someone died and they had a few assets doesn't automatically mean their estate will need to go through the probate process. The first step is to inventory all assets. If there is a joint owner on an asset, it goes to the surviving owner. If there is a beneficiary on an asset, it goes to that beneficiary. If the asset is in the name of a trust, the trust will govern the distribution of that asset. Generally, probate is only necessary for assets in the decedent's name alone that do not pass by any other means. Also, in California there is a threshold amount of such assets before you even have to bother going to court. In other words, don't assume probate is automatically necessary.
In California, the probate process can be frustrating, complicated, and time-consuming. It's important to understand the steps involved and the costs and fees associated with the process. Step 1: Filing the Petition for Probate The first step in the California probate process is to file a petition for probate in the court in the county where the deceased person lived. The petition must be filed by the executor named in the deceased person's will or by an interested party if there is no will. The California probate Code outlines a list of individuals who may petition the court for probate (assuming no one has been nominated in a will). In short, a "petition" is a request of the court to appoint someone as the executor of the estate - someone who will be in charge of distributing the decedent's assets. The petition must include information about the deceased person's assets, liabilities, debts, and beneficiaries. The probate filing fee varies by county but typically ranges about $500. Step 2: Appointment of Executor or Administrator Once the petition is filed, the court will schedule a hearing date to appoint an executor or administrator for the estate. The executor is usually named by the decedent in the will, but if there is no will, the court will appoint an administrator. The executor or administrator is responsible for managing the decedent's assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries. The executor or administrator must often post a bond, which is a type of insurance policy that ensures the estate will be properly managed. The cost of the bond varies depending on the size of the estate but can range from a few hundred to several thousand dollars. In some cases, the court might waive the bond. Usually the court will insist on a bond even if it's waived in the will. Step 3: Inventory and Appraisal of Assets After the executor or administrator is appointed by the court, they must prepare an inventory and appraisal of the decedent's assets. This includes identifying all of the assets, such as bank accounts, real property, and personal property, and determining the value of said property. The cost of the appraisal varies depending on the complexity of the estate but can range from a few hundred to several thousand dollars. Step 4: Payment of Debts and Taxes The executor or administrator must pay all of the debts and taxes before distributing any assets to the beneficiaries. This includes filing tax returns for the decedent and in some cases for the estate. In some cases estate taxes that may be owed. The cost of paying debts and taxes varies depending on the amount owed and the complexity of the estate. Step 5: Distribution of Assets Once the debts and taxes have been paid, the executor (or administrator) can distribute the remaining assets to the beneficiaries (pursuant to a final court order). This includes transferring ownership of real estate, personal property, and distributing any remaining cash or investments. The executor or administrator must file a final accounting with the court, which details all of the income, expenses, and distributions made from the estate. The court issues a final court order closing out the probate and instructing the executor what to do. Probate costs and fees varies depending on the size and complexity of the estate. Some costs and fees that may be associated with the probate process include:
Overall, the cost of probate in California can range from a few thousand dollars to tens of thousands of dollars, depending on the size and complexity of the estate. It's important to consult with an experienced estate planning attorney to understand the probate process and the costs and fees involved. If you plan your estate properly, you can avoid probate altogether. Probate is a public process, takes a long time, and can be quite frustrating to all those involved. VIDEO TRANSCRIPT:
Hello everyone, this is Robert Mansur and welcome to the Estate Plan Review questionnaire. Now, this is the questionnaire that you'd fill out if you are asking us to review an existing estate plan. So you have an existing will, existing living trust, healthcare documents, powers of attorney, all of that stuff. This is the questionnaire that you should be filling out. If you are coming to us to create an estate plan from scratch or the first time as an individual or a couple, you'd click on the get started page, which is at the very top of this page right here. Also, if you're just coming in for a general consultation, we are not reviewing your estate plan. There is a special form for that as well. But here is what you'd fill out if you have an existing plan that we are gonna be reviewing. So on this page, just indicate your first and last name, any additional people if you're a married couple, the date of your consultation, which you would have worked out with my office in advance by calling us, how you learned about our office - If you could indicate that here, if somebody referred you your best address right here in the middle and best phone number, also right here, you'd indicate your best email. Now the email is helpful because we can reach you but also you will receive a copy of this completed questionnaire to the email that you provide. Now here is where we ask you what kind of documents do you have that we are gonna be reviewing. So remember, an estate plan is a collection of legal tools, legal documents, and some of those include a living trust, a last will and testament powers of attorney healthcare documents. You might not even be sure what they are, so you can just indicate that here. Or if there's any other documents that we're gonna be reviewing, you can indicate those here as well as this field of course. Now this here, we ask about what is the general goal of this meeting? Is it that you wish to make changes? It's been too long since you reviewed the documents? You just want to check on the estate plan? You don't know what it says - you need some further explanation about it or you're not sure. You can just indicate that here so that we have a heads up as to what you hope to accomplish during our meeting. And that way we can focus the meeting. If there are any changes you wish to make, you can indicate them here as well as indicating any additional concerns you might have. Anything else you think we need to know? If you want to upload the documents, you can upload them here by clicking on the upload button or dragging and dropping them into this field. They will be automatically uploaded. If the files are too large, there are some free resources out there like "filemail.com" or "wetransfer.com" where you can, uh, send us a, uh, large amount of documents that are too large for the form to handle. But in most cases the form should be fine. You can also just drop off the documents to our office or email the documents to us as well. Once you click on submit, you're gonna get a confirmation page you can print out and you will also receive a copy of all of your responses to the email that you've provided. Thank you so much for taking the time to fill out the questionnaire. We really appreciate the opportunity to, to assist you, and we look forward to our meeting. Take care. VIDEO TRANSCRIPTION:Hello everyone, this is Robert Mansour and we're going to take a look at the couples estate planning questionnaire. I'm just gonna walk you through the questionnaire very quickly and hopefully this will help you when you're actually going through it yourself. So you'll notice this is of course for couples. We have other questionnaires for individuals as well as other scenarios. For those, you just have to go up to the Get Started page, click there and you'll find those other questionnaires.
But for a married couple, this is the best one to use. You'll notice that there are six pages, 1, 2, 3, 4, 5, and 6. In various points in the questionnaire, you will see some general instructions that will be outlined, and so you should try to read those as they might be helpful. On the first page here, you're going to indicate the date of your consultation as well as how you learned about my office. If anybody referred you, spouse number one and spouse number two should enter their names as they wish them to appear. So, spouse number one, you just pick one of you to be the spouse number one, and one of you to be spouse. Best phone number to reach you, best email address. Now this is important so that we can reach you, but also you will receive a copy of all the information you enter and we will also receive a copy, but the copy will be sent to the email address that you provide here. You should also provide your mailing address as well - Best mailing address. And then you click on the bottom here, this button that says "next", and it'll take you to the next page. Now, I also want to show you that you can save your progress if you wish by clicking this button that says "Save" at the bottom right. If you click on that button, it will create a unique link that you can email to yourself. So you can enter your email right here. Then click on the button that says "send" and you will receive this link you can click on it and it'll take you right back to where you left off in the form so that you can continue at a later time. Now, truth be told, very few clients do that because the form doesn't take too long to go through, maybe about 20 minutes or so. So let's go to the next page. Here, it asks if either of you have been divorced or both of you, if you have any prior documents you can indicate so here, maybe one of you does or you both don't. It's totally fine, just whatever fits there. And then the next page we start asking you about who your beneficiaries are going to be, where are the assets of your trust going to go after you both pass away, or perhaps some assets will be distributed when one of you passes away. And then additional distributions after the second person passes away. It asks here if you have any children from previous relationships. So do you have any children from your present relationship, if you click on "Yes", for example, it will open a dialogue where you can enter that information. Also, many times you will find that I have provided you with a sample response so that you can see what the response should look like. If you click "No", then of course that dialogue box will close. If you have children from your present relationship, you can indicate those kids here and indicate their birthdays. And if you need to add a child, you can just click here and it will continue to allow you to add as many children as you need. Here you can talk about how you want your estate to distribute to your children or your beneficiaries, and if you want them to inherit from you right away or perhaps in another manner - any special issues that any of your beneficiaries have, such as bankruptcy or alcoholism or substance abuse or special needs that need to be accounted for - you can enter those here. The "Apocalypse" paragraph is right here. In the rare event all your beneficiaries should predecease you, where would you want your estate to go? And again, there's just a simple example right there for you. Finally, here on this page, you'll notice that, we ask you how much leeway does the surviving spouse have after the first spouse dies to make changes to the trust. That's a very important issue, especially if there's a blended family. Let's go to the next page here - page four. Here's where you indicate all the trustees, either the people who would be managing your trust and distributing your assets. You can put the first person and you can also click Add Trustee to add additional people. Usually I like folks to come up with two or three names. The executors are the people in charge of your wills and your will serves as a backup to your trust. It's also where you might nominate guardians for your children. In addition to separate guardianship nominations, if you have any minor children, you can indicate that here. And we'll deal with guardianship nominations as a result. Healthcare directives for each spouse...People to make healthcare decisions for you if you cannot - typically the spouse is first in line for the other. And then you can name a second and third person. Beyond that, here's where you indicate any healthcare instructions that you might want to leave and any additional instructions. Power of attorney is where you'd list somebody to act on your behalf if you cannot act on your own behalf. And that's where you'd indicate that here. And once again, the spouse is first in line, typically followed by one or two additional people. And then on the final page, here is where we ask you to list information about all of your assets. And when you indicate "Yes" it will open a dialogue box where you can add specifics regarding that particular asset. So this one obviously asks about real estate, including your primary residence. If you want to add property, you can click here. And the same goes for bank accounts and things like that. At the very bottom of this page, we ask you to provide any additional information that you know about - your goals and the reasons that you're creating your estate plan, any other information that you'd like us to have. You can also upload documents by clicking on upload or just dragging the documents to this field, and they will be uploaded with your responses. When all is said and done, you just click on "Submit" and your answers will be submitted to our office, and you will also get a copy of all your responses to the email that you provided at the very beginning. There will also be a confirmation page once you click on submit and you can print that page as well. I hope this was helpful for you. This is the couples estate planning questionnaire. Thank you for the opportunity to assist you, and we look forward to seeing you soon. VIDEO TRANSCRIPT:
Hello everyone, this is Robert Mansour and welcome to the general consultation questionnaire. Now, if you are coming to my office for an estate plan, you would fill out a different questionnaire that would be the individual's estate planning questionnaire or the couples estate planning questionnaire, and those could be found on the Get Started page by clicking here. The general consultation questionannire is for exactly that - a general consultation. You just want some information about something that doesn't quite fit into the estate planning box. So you might have a question about what to do after the death of a loved one or you're the trustee of a trust and you're trying to figure out what to do. Those are the kinds of things for a general consultation. If you take a look at the questionnaire here, we just ask for basic information at the top, your name, your last name, if it's a couple married couple, you can add an additional person here, the date of your consultation that you organized with my office by calling our office in advance - also how you learned about our office, your best address, best phone number, and email. Now, the email is also where you're going to get a copy of your responses to this questionnaire - so please provide the best email. That way we can reach you as well. And then down here is where you would indicate what your consultation is about, what are your primary concerns and what you hope to accomplish during that consultation. We want to make sure the consultation is as productive as possible. Down here, you're able to upload documents to this questionnaire, or you can just drag the documents to this field and they will be uploaded automatically. When all is said and done, you click on the button here that says "Submit." Once you've done so, you will see a confirmation page that you can print out and you'll receive a copy of your responses and we will use that to assist us so that we have a productive initial consultation with you. Thank you very much for taking the time to check out this video, and we look forward to meeting you very soon. VIDEO TRANSCRIPTION:
Hello everyone, this is Rob Mansour and we're going to take a look at the individual's estate planning questionnaire. I'm gonna give you a quick tour, and this tour might help you when you're actually filling out the questionnaire yourself. So you'll notice that the questionnaire has six pages, 1, 2, 3, 4, 5, and 6 at the top. And every so often you're gonna find some general instructions for you to follow. Don't worry if you can't answer all the questions. Just do your best. Here in this first page you'll enter the date of your consultation, how you learned about my office, how do you want your name to appear in the legal documents. And, if you choose to put a middle name or not, put a middle name, that's your decision, best phone number to reach you, your best email address that you check frequently. Also, a copy of your completed questionnaire will be sent to that email and your best mailing address down here. Now, at the bottom of every page of the questionnaire, you'll notice that there's a button that says "Save. If you click on that button, it will allow you to save your progress where you are in the questionnaire, and you can enter, enter your email here - When you click on that link, you'll be able to pick up where you left off. So that is sometimes helpful. The questionnaire itself shouldn't take you, you know, too long, maybe about 20 Asks if you're divorced, if you, if you have any special situation that we need to be aware of, if you're a widow or a widower, if you have any pre-existing documents, you can indicate them here. And otherwise you could just click that you don't have any prior documents. We'll continue to the next page. Now, here is where we ask you about beneficiaries - who is going to inherit your estate? And here is where you'd indicate if you have any children, and if you do, you can click on yes. Now, you'll notice if you click on yes, there are points in the questionnaire where you will be provided with more details depending on how you answer the questions. So if you say that you do not have any children, well then that dialogue will not engage. But if you put that you do have children, you'll notice that you can add their names and their birth dates right here. Also, you can add children by clicking on add child right here. Here it talks about how your estate will distribute. So you should read that carefully and add any information that you think is important. Any special issues affecting your beneficiaries should be listed here. How you want your kids or your beneficiaries to inherit from you. Again, you may not have all the answers to this and just go ahead and do your best. Then of course is the apocalypse section where if all the beneficiaries you've listed are no longer with us for some reason, where would you want your estate to go? Now you'll notice many times in the questionnaire I will actually provide a sample response to assist you. So you might want to take a look at those as well. Now, let's go to the next page. Here you will list your successor trustees. These are the people in charge of your trust if you can't handle things anymore. So let's say for example, you're disabled, you're incapacitated, you got into a car accident, you're in the hospital. There may be times when somebody needs to take over and this could take several years if you're very sick. When people when think about trustees, they tend to think this is the person who's distributing my estate. And that is true. But this person is also going to be the one handling your estate in the event you cannot handle it anymore. And so you'll notice here you can enter the name of the trustee as well as their relationship to you. You can also add successor trustees by clicking on this button right here. And then you'll name your executors. These are the people in charge of your will and your will is a backup to your living trust and the person in charge is called your executor. Here it asks if you have any minor children in case we need to name guardians for those minor children. Let's go to the next page here. This page here asks you about who's going to make healthcare decisions for you if you cannot, and any special instructions you wanna leave about that and power of attorney. This is the person who gets to act on your behalf in the event that you cannot act for some reason or another, such as incapacity. So this is not the same as your trustee, although it is often the same person and you just go ahead and indicate their name and their relationship to you right here. And then you click add agent if you want to add additional people. And then on the last page of the questionnaire, we ask more detailed questions about your assets. And again, depending on how you answer it will open additional information. So here it says, do you have any real estate including your primary residence? If you click yes, it will ask you to list your real estate. And then you can always add real estate by clicking the add property button. And the same goes for all of the other assets and asset classes on this page. And then there's just some general information here to learn more about your goals and any other information you'd like us to learn. If you wanna upload any documents to the questionnaire, you can upload them here or drag the files to this section of the questionnaire. And then once you submit, you will get a confirmation page that contains all your responses. You can print that page also. All of the documents are, all of your answers rather, will be emailed to you and emailed to us so that we have all of that information. Again, just do your very best on this questionnaire because the more information we have, the more productive that initial meeting will be. Thank you very much. I hope you found this quick video helpful and we look forward to meeting with you. VIDEO TRANSCRIPT:
Hello everyone. This is Robert Mansour, and I want to welcome you to the Get Started page on my website. So I'd like to give you a quick tour of the process here, so that it'll make it easier for you. Basically, we have two steps. The first step on the get started page - step one - schedule a consultation with my office. To do that, all you have to do is call us at the phone number you see there on the screen and you can schedule a date and time that's convenient for you. Typically the meetings are in person or by zoom video conference or by telephone. It's your choice. Personally, I think it's more effective to have an in-person conference or to have at the very least a zoom conference so that we have that face-to-face, human contact. That's not always as good by phone, especially when you want to illustrate something or explain something in more detail. Once you have your appointment scheduled, then what you want to do is go to step two and fill out the applicable questionnaire for the situation. So let's say there's the one right here, a new plan, new estate plan for an individual. So let's say, you know, that you want a trust or a will, or you want an estate plan and you can click on this and it'll take you to the questionnaire that you should fill out before the meeting so that our meeting can be as productive as possible. Now, if you're a couple, you can fill out this button right here on the top right - and that one is a new plan for a couple, a questionnaire regarding that. And then if you just have just some general questions or you want to talk about a topic unrelated to creating your own plan, you can click on general consultation, or if you're not quite sure what you want, you can click on general consultation as well. And then finally, if you have an estate plan already in existence and you want to have it reviewed because either it's been a long time since you've had, since you've taken a look at it, you don't know what it says, or maybe you want to understand it a little bit better, or maybe you want to make changes to the plan that's estate plan review on the bottom right. So very briefly, let's take a look at a couple of these just to see what they're like. So if you click on general consultation, it will take you to the general consultation page where you will see a brief questionnaire. You just do your best to fill it out and you can even upload documents - if you want us to take a look at some documents and then you click submit. You'll see a confirmation page and you'll receive a confirmation email. You should also receive a confirmation PDF and we will also receive the same. And then our meeting can be much more productive. Now, if we go back to the Get Started page, let's say we click on one of the other options, such as for example, a new estate plan for an individual. Let's click on that right here. So this will take you to the individual's estate planning questionnaire. Now the estate planning questionnaires are a bit more involved because obviously we need much more information in order to give you the best advice that we can give you - but basically you do your best to fill it out. If you need to save your work and return later on click on the bottom right. You can save your work and return later, but we have found that it takes clients about 15 minutes or so to fill this thing out - and there's just six pages. And sometimes if you click on something, it'll open a new window and it'll ask you additional questions. For example, if you click you have a child or you have children, it'll open additional questions about those children. And then of course you can submit your questionnaire. You will receive an email confirmation. You'll also see the confirmation page and we will also receive a confirmation - all the information that you put there so that our meeting can be as productive as possible. I hope this was helpful, and I want to thank you so much for coming to my website and giving us the opportunity to help you. Take care. Long ago, if you had too much money when you died, the government wanted part of it. That's called "estate taxes." Some folks call it "inheritance tax" or "death tax." Sounds horrible either way. Imagine if you visited Disneyland and as you left the park, an attendant charged you $50 to leave! On a federal level, estate taxes are levied against an estate if the estate is worth too much when you die. After all, the government wants your family's money to fund various government programs, fix roads, etc. However, most people don't have that problem anymore unless you have more than $12.06 million (this is called the "exemption" amount - the amount that is exempt from estate taxes). Also a married couple can double that. So that's a lot of money you can leave to your heirs and they won't need to worry about estate taxes. Therefore, most people don't have enough money in their estate to be affected by estate taxes. Also, California currently doesn't levy estate taxes unlike some other states which indeed impose an estate tax in addition to the federal estate tax.
Also, the gift tax laws have changes a bit in 2022. A married couple can gift any amount to one another without any gift tax implications. However, there are limits to how much you can gift to a non-spouse. You may have seen old movies where someone was on their death bed, signing away everything in their estate at the last minute. Then they would die pennyless and the government would get no revenue from estate taxes. The government grew wise to this tactic and imposed restrictions on how much a person could gift per year so people could not simply divest themselves of everything moments before dying. These limits still exist even though estate taxes aren't much of an issue for most Americans. So how much can you gift to a non-spouse? It use to be $15,000 per year per person. Now it's $16,000 per year per person. If you gift more than this, you will probably need to file a gift tax return with the IRS. You won't actually have to pay taxes, but the IRS wants to keep track of gifts that exceed the annual gift limit. Spouses can double up on this as well. For example, husband can gift his son $16,000 and wife can gift another $16,000 to the same son. The recipient of the gift doesn't pay taxes either. You can gift up to $12.06 million over your lifetime - again, not a problem for most folks! Remember that these numbers change year to year. Make sure you talk to your CPA about any tax questions you might have as these laws are subject to change year to year. Client sometimes ask how often they should review their estate plan. I tell clients that checking up on your legal affairs is something they should do. It's not a vaccination - you don't create an estate plan and then forget about it. There are some important reasons for this. First of all, an estate plan is exactly that - a "plan." Therefore, if circumstances change, you may need to change or alter your plan depending on those circumstances. So I tell clients they should revisit their estate plan if there is a major life change - a birth of a child, a divorce, a new marriage, a beneficiary who might be facing some challenges like bankruptcy, divorce, litigation, etc. There are times when you have to revisit the plan and make changes accordingly. I liken it to going to the doctor - people don't just go to the doctor one time and then never again. Ideally you should be going to your doctor regularly in case there are any changes that require a new approach, new medication, new diet, etc.
Also, laws changes as the years go on. Therefore, you want to make sure your legal documents are current and reflect the current laws. That doesn't mean you need to make a change every time there is a minor change in the law. In many cases, minor changes in the law won't really affect your overall plan. However, just like there are changes in medicine that may affect what a doctor recommends that you do, your lawyer might recommend changes or updates to keep up with current law changes that affect your plan. Finally, if your documents are too old, some places may be reticent to honor your documents when the time comes. As a practical matter, your will and/or your living trust probably won't be too affected by that. It is common for people to use old wills or old living trusts. However, if you present a durable power of attorney or health care documents that are 10 years or older, some places might say, "Do you have anything newer than this?" Although your documents may be perfectly legal, some institutions may be reluctant to honor them if they are too "old." What is too old? Some places don't like document older than 5 years old. Some other places worry about documents that are more than 10 years old. I usually recommend clients update their health care documents and the power of attorney document every 10 years at least. That way, they always have current documents and are less likely to run into such resistance. The reason some places are concerned about older documents is because they worry that someone is trying to trick them. They worry about fraud. If a document is more than 10 years old, they worry there might be a newer document and someone is trying to use an older document instead. If the documents presented are fairly recent, the facility is generally more confident the document is legitimate and indeed what the client wants. The general rule of thumb I give clients is to revisit their estate planning documents every 7 years. That's because 5 years is probably too soon and 10 years might be too long. Plus, people tend to remember the "lucky" number 7. Of course, they should also review their documents if there is a major life change as indicated above. Once you create your living trust, you have to "fund" the trust. What does that mean? Many people have a living trust but it's empty...there's nothing in the trust. Putting things INSIDE your trust is known as "funding" the living trust.
Assets inside a trust are (1) governed by the trust, (2) avoid the court system and (3) are managed by those you've designated in the trust. Those people are known as your Successor Trustees. There are several analogies that I like to use that help clients understand the concept of funding their trust: First, I draw a circle on a piece of paper. The circle represents the living trust. Then I draw a whole bunch of X's inside the circle. The X's represent the client's assets. I explain that only the assets that are inside the circle are governed by the trust. You see, the trust only applies to assets that are inside the circle. Sometimes I tell people to imagine that their living trust is like a bucket. First it starts out as an empty bucket. There's nothing in it. Then you have to start putting things inside that bucket. Putting things "inside the bucket" is "funding" the trust. Another analogy I use is that of building a brand new home. Imagine you built a house from the ground up. You chose all the options, designed every room, chose the layout that suits you best. It's a beautiful home, designed by you, exactly the way you want it. Now imagine if after building this home, you got in your car and drove away and never came back. You never move into the house. You never furnish it. It's just a big empty shell. What was the point of building the house in the first place if you're not going to move into the house and furnish it? So the living trust is like this new house. You create a living trust with all the provisions you want. Now you have to "furnish" that new trust with your assets. OK one last analogy...I promise! Imagine your living trust is like having your own airplane. You design the plane. On the side of the plane, it says "Johnson Family Trust". You are in the cockpit, flying the plane, because you are also the initial trustee of your trust (assuming you do things as most people do). Seated in first class are your successor trustees who will fly the plane if you cannot for any reason (death or incapacity). The cargo on the plane are your trust assets. If you are flying a plane without any "cargo" (i.e., assets), the plane is going to be empty when it reaches its destination and a whole bunch of folks are going to be upset their luggage didn't arrive. So now that we know that we must put things inside the trust, what does that mean? That means you have to change the title on the asset. So instead of your home being owned by you as an individual (or couple as the case may be), it would be owned by your living trust. That would involve preparing a new deed signed by you, transferring title to your trust. The same applies for bank accounts, investment accounts, etc. You have to change the title on the asset. So instead of your name being on the bank account, your trust would be the new owner. That takes some effort. You have to visit the various banks and work with them to change title. Your lawyer should advise you how to do that. So as we've said before many times, many people "have" a living trust. However, many of those same people haven't funded their trust. It's simply an empty bucket. Your living trust is not a mysterious legal document that has magical properties. Some people find living trusts to be very enigmatic creatures. At the end of the day, a living trust is like any legal document. It's commonly referred to as a "trust agreement." It's an "agreement" between the creator of the trust (often termed the "Settlor" of the trust) and the person who manages the trust (commonly known as the "Trustee").
In the case of an individual person, it's kind of strange to think of it as an "agreement" but it is nevertheless. It's easier to understand when thinking of a married couple creating a trust. However, at the end of the day, whether it's an individual or a married couple, a living trust is an "agreement" created between the Settlor(s) of the trust and the Trustee(s) of the trust. Since the living trust is an "agreement", it's basically a contract between the Settlor(s) and the Trustee(s). As a contract, it can be legally enforced like any other contract. Therefore if someone is not playing by the "rules" of the trust, that person can be taken to court where the trust can be enforced. So imagine if a Trustee is using the trust assets in an improper way or is failing to account regularly to the beneficiaries (as required in most trusts), he/she can be taken to court where a judge will inquire and find out why the Trustee isn't following the rules of the trust. The trustee is not the only person who has to play by the rules of the trust (the contract). The beneficiaries also need to follow the rules of the trust. For example, a beneficiary might have to wait till a certain age before they get their inheritance. In other circumstances, the beneficiary might not receive they inheritance right away, but perhaps in stages, upon certain milestones, etc. If you think of a living trust like any other enforceable legal document, it becomes less mysterious and easier to understand. It's basically a contract or agreement that governs the use and distribution of assets in the name of the trust. That means the asset must be titled in the name of the trust. Not all assets are governed by a living trust. Only assets in the name of the trust, or payable to the trust, are ultimately governed by the trust. For an asset to be "in" the trust, it must be titled in the name of the trust. For example, a parcel of real estate would be owned by "The John Smith Living Trust" instead of being in John Smith's name alone. The same goes for bank accounts or other investments. Think of the living trust like a bucket. Assets "in" the bucket are governed by the trust. Assets that are not in the bucket, are not governed by it. |
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