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Home » Resources » Frequently asked questions » Trust Administration & Probate Frequently Asked Questions

Trust Administration & Probate Frequently Asked Questions

    • What is Probate?

    • Probate is designed to create a “final accounting” upon death. It is the legal process of “proving up” a Will, or verifying that a Will is valid, takes place in one of two instances. First, if a person dies leaving behind a Will, or second, if the deceased has died intestate, that is, has not left behind a Will or estate plan of any type or the Will cannot be found.

    • Does the Probate process take a long time?

    • Depending on the complexity of the estate and the thoroughness with which accounting has been carried out before death, probate can either be a relatively simple task or a daunting one. Be aware that no matter the situation, probate may be a lengthy process often taking months or possibly years to play out, and one which may take a considerable amount of an executor’s time.

      To summarize the process, probate can be broken into six basic steps:

      1. Validation of the Will
      2. Appoint executor
      3. Inventory estate
      4. Pay claims against the estate
      5. Pay estate taxes
      6. Distribute remaining assets

       

      Each of these steps involve legal documentation and validation, and more importantly, proper accounting each step of the way.

    • What is Probate Court?

    • Probate begins and ends with the special Probate Court set up in each state to handle estate issues. (Sometimes known as the Orphan’s or Chancery Court in certain states.) All actions taken regarding the estate are accountable to this court, and must be noted and reported regularly. This court is staffed by special judges qualified to oversee estate resolution issues.

    • Does the Trust Administration process take a long time?

    • To summarize the process, trust administration can be broken into five basic steps:

      1. Inventory assets
      2. Determine estate tax
      3. Division of trust assets
      4. File the Federal and State tax forms
      5. Distributions to beneficiaries

      Although the trust administration process seems relatively straightforward, there are several reasons it can sometimes be drawn out over several months or even years. The first step, the inventory of assets, must be completed before the trust administration can begin, and this can be difficult to complete depending upon the prior organization and the size and complexity of the decedent’s assets. Next, the 706 estate tax return must be filed within 9 months, or 15 months if an extension is filed. Often, it is prudent to wait until the last minute to file this form. If the spouse of the decedent is in failing health and may pass away before the deadline, then both 706 forms can be used to maximize tax advantages to the estate. The final step, asset distribution, cannot take place until the 706 has been filed, and even then should not take place until the “Closing Letter” is received from the IRS certifying acceptance of the 706 return. This closing letter will take a minimum of 6 to 8 months, and as long as 3 years, to arrive after the 706 is filed. In addition, there may be a state estate or inheritance tax return required, even if a federal return is not required.

    • I thought that a living trust avoids probate and attorney fees. Why do I have to pay more fees?

    • While having a living trust can significantly reduce costs compared to probate, there is still a considerable amount of work to be done in properly administering even a simple living trust. The services of an attorney are required, and that person or firm should be compensated fairly for their services. It is important to remember that the fees allowed for trust administration are usually much lower than those for probate, and there is generally less work involved, as there is less involvement of the courts and state bureaucracy.

    • Can I pick and choose what assets go into the “B” trust?

    • The answer depends upon the language of the trust document. Certain trusts include “pick and choose” language that allows trustees to selectively place assets into the “B” trust.

    • How do I transfer the car(s) into my name?

    • If you are a relative of the deceased, this is simple in most states. To transfer the title of vehicles owned by the deceased, simply take the death certificate to the DMV, and perform the transfer, paying whatever fees they require. If not a relative, bringing along the will and or any trust documents indicating your status should be sufficient.

    • What do I do about Social Security?

    • Social Security will continue to send out benefit checks until they are notified of an individual’s death. The executor/spouse/trustee should contact the local Social Security Administration office and notify them of the death, or if a benefit check is received, send it back with a letter notifying them. This is important. If checks continue to be deposited, the recipient can incur liability later when Social Security learns of the recipient’s death.

    • Can I Make Changes to My Living Trust?

    • I’m often asked, “Can I revoke my trust, or can I make changes to my trust?” And the answer is yes. Making minor changes is generally called an amendment and making multiple, major changes at one time, is called a restatement. And you can always revoke your trust at any time while you are alive.

    • What Happens to Your Property Without a Living Trust?

    • I often get asked, “What will happen to my property if I die without a will or a trust?”. Well if you die without a will or a trust, the state determines who will be your ultimate heirs, through a court supervised process called probate. Probate is a public process, it’s a costly process, and worst of all, it can be a lengthy process. It typically takes anywhere between six months to a year, but if you have family drama, it’ll take much longer than that.

    • How Do I Fund My Trust?

    • I’m also asked, “How do I fund my trust?”. Well funding a trust occurs when the assets that you own as an individual, are transferred into your trust. For example, at the Collins Law Group, we provide our clients with funding letters which they present, in person, to their financial institutions, to ensure that their bank accounts are properly transferred into trust. When it comes to real estate, we prepare quick-claim deeds for our clients to ensure that their real estate is properly transferred into trust.


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Testimonials

Client Review
August 19, 2020
    

“My mother told me about the Collins Law Group and I must say, the entire experience has been a real pleasure. Although I was nervous at first, the Collins Law Group staff put me at ease with their friendliness and knowledge. I didn’t realize how hard it could be on your family and loved ones left behind if you die without any planning or directions in place for them. My biggest concern was making sure my elderly mother would be provided for and taken care of if something happened to me. I have been a caregiver for her for 12 years, so this planning was crucially important. I had previously made a living trust for myself on Legal Zoom but there is no comparison to the level of service and professionalism that Collins Law Group embodies. Attorney Collins and her staff provides excellent service and it will take a large burden off of my family when they need guidance at the time of my passing.”

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-Ms. Jones

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