» Estate & Trust Administration

Is there common-law marriage in California?

No.  California does not, and has never, recognized common law marriage.  However, couples who have lived together for an extended period of time have rights, including rights they can assert to inherit property.

My parent died and named me trustee. What do I do next?

The most important thing to know is that, unless there is an emergency trust task requiring immediate action, you have time to focus on grieving your parent before you have to worry about trust administration tasks.  As a practical matter in California, you will not be able to do much trust work until you have received the death certificates (order at least 10 certified copies), and it has been at least 40 days since your mom or dad passed. 

After ordering the death certificates, your first tasks will involve initial notifications and getting organized so you can gather as much information about what the trust owned and what it owed. The trustee will work with the executor to find the will and deposit it with the proper probate court.  The trustee will notify interested governmental agencies, including the Social Security Administration, Department of Health and Human Services, and others as required, and will get a taxpayer identification number for the trust. 

The trustee will next give notice to the trust beneficiaries, with the information required by the California Probate Code.  Other tasks include paying debts and may include property appraisals, reviewing investments, filing tax returns, and transferring property. If the trust property will be distributed quickly, then the trustee’s tasks will primarily involve gathering and protecting all trust property and completing the property transfers. 

If the trust will be ongoing, because there are minor children or continuing business operations for example, the trustee will have additional and ongoing tasks. The trustee must communicate with beneficiaries and provide them a trust accounting as required by the trust documents, at least once a year.

Does a trustee get paid?

The first step is to read the trust documents and see if they mention trustee compensation.  As with most trust-related questions, the trust documents will determine what can be done.  However, in general, a trustee is entitled to reasonable compensation for the time spent executing trustee duties, and to reimbursement for trust-related costs and expenses.

What does a trustee do?

A trustee is someone who holds and manages property for the benefit of someone else.  When the creators of a trust die, their successor trustee takes over the tasks of managing the trust assets and carrying out the instructions in the trust documents to ultimately transfer the trust property to the trust beneficiaries.  If the trustee and the executor are not the same person, the trustee will work with the executor on trust-related tasks. 

A trustee can do many of the initial tasks and day-to-day management without the help of professionals. Other tasks, such as filing tax returns, transferring ownership of real estate, funding sub-trusts, and making investment decisions may be best handled with the help of experienced professionals, such as attorneys, accountants, and financial advisors.   

What are the alternatives to probate?

There are many alternatives to going through probate.

If the only property in the estate is so encumbered by liens or debts that there will be nothing left once it’s sold, then it may be best to let the foreclosure process take care of it.

If the property has enough value to make it worth pursuing, then available probate alternatives will vary based on a number of factors, including the type of property (real estate or personal property) and its value, who else is on title, and who stands to inherit the property.

If the value of property in the probate estate is less than the statutory threshold ($166,250 in 2021), and at least 40 days have passed since the date of death, then personal property such as bank accounts and stocks can be transferred to the next of kin by using a notarized affidavit signed under penalty of perjury, with required supporting documentation attached.  This procedure cannot be used to transfer real property, but there may be other simplified procedures available through the probate petition process.

If an asset has a beneficiary named to receive it, that asset will not be part of a probate.  Assets that pass by beneficiary designation include life insurance, retirement accounts, pensions, or annuities, payable-on-death or transfer-on-death accounts or deeds, and property in a living trust.

If an asset was titled in the name of more than one person, the type of title ownership might remove the property from the probate estate.  For example, property with title held in joint tenancy or community property with right of survivorship, as well as joint account holders will receive the property without probate.

If survivors include a spouse, registered domestic partner, or minor children, there may be simplified procedures available to transfer the property.  Survivor benefits, such as Social Security or veterans’ benefits, do not require probate.

If you need help determining whether a given probate alternative is available may be difficult, contact experienced probate counsel for guidance. 

Does a Last Will and Testament have to go through probate?

Yes. Assets that you leave to others using a Last Will and Testament must be distributed through the probate process. If there is no Last Will and Testament (or other estate planning document such as a revocable living trust), then the probate court will decide how to distribute the assets by following California Probate Code intestate succession laws.

What happens to my property when I die?

We can only give a general answer to this question, because no two estates are identical.  What happens to a given piece of property in your estate will be determined first, by how the property is titled, and second, by the total amount of property that is titled in your name as an individual (versus your name as trustee of your trust, or as a joint tenant, for instance).  Property that is part of your trust, that passes to a joint tenant, or that passes by beneficiary designation will not be part of your probate estate at all. As a result, that property will be transferred, in most cases, using forms instead of seeking court authorization.  If, however, you left property that was titled in your name alone, some form of court authorization will most likely need to be sought. 

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