Table of Contents

  1. How do I determine if a probate is required?
  2. When must I file for Probate?
  3. Why does a revocable trust avoid probate?
  4. If I update my Living Trust, do I have to re-title all the assets in the Trust?
  5. How can on-line services claim to do Living Trusts for $500 or less?


How do I determine if a probate is required?

In California, a probate is required if an individual dies with or without a will with $100,000 or more of SEPARATE property.  While not complex, the Probate rules must be followed.  If one has Real Property, a Probate is required and an order or approved Affidavit must be obtained before title to the property can be transferred.

In Nevada, a full probate is required if one dies with Real Property and an Estate valued over  $200,000.  An abbreviated procedure may be done if the estate is valued less than $200,000.

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When must I file for Probate?

In both California and Nevada, one should file within 30 days of the decedent's death. The named executor or next person in line may be removed as Executor or Administrator if they do not file within 30 days.

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Why does a revocable trust avoid Probate?

The answer is really simple.  The trust doesn't die.  Probate is required when one dies.  Since the trust doesn't die, there is no legal requirement for court action.  The named Trustee simply changes from one to another.

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If I update my Trust do I have to re-title the assets in the trust?

No.  The trust can even be revoked and restated. That way the Trust name stays the same and the home or other titled assets need not be changed.

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How can on line services claim to do trusts for $500 or less?

This is deflective advertising.  Doing a basic trust is pretty simple.  However one must understand what it is they are doing.  Going on-line presumes you know the law behind Trusts.  There are over 600 pages of California law and a similar amount of California Rules covering the treatment of Trusts, the obligations of the Trustee's the tax treatment of trusts, the MediCal treatment of trusts, and the like.  Doing a trust is serious business. You are dealing with hundreds of thousands of dollars in assets; More if you own real California property,  and distributing those assets to those you care about.  Your Estate Plan should be carefully reviewed with someone who understands the law, the psychology, and the pitfalls that a poorly adapted trust can create.  Doing this yourself usually causes problems and causes litigation in many Estate proceedings.  Unlike the Probate process, Trust litigation has no legal cost limit.  The cost of administering a poorly adapted trust usually greatly exceed the cost of probate. 

The Trust mills usually have you answer a number of questions then they send you the same trust everyone else gets.  They can't do it any other way. They depend on your ego to sell you a "Yugo."  Note the fine print.  Are you dealing with a law firm or a form provider?  A good Estate Plan, that may include a Trust, usually requires at least a couple of hours with a skilled attorney just to figure out the best approach for you. Jumping into a Trust can easily be hazardous. Just ask someone who was kicked off of SSI or Medicaid because they received trust money.  Just ask the Trustee who lost their home because they made a mistake and were sued.

A good estate plan will take at least 2-3 hours of direct interaction with the attorney in addition to the preparation and review time spent drafting the documents. That can not be done for $500.

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Copyright 2001  [Law Offices of James A. Busse Jr.]. All rights reserved.
Revised: 04/04/06.