Probate Law

The Difference Between Probate and Trust Administration

When someone dies, it can leave their family members with a lot of unanswered questions. In most cases, the person’s will is the first place to look for information about what to do with the estate and how to proceed with final arrangements. 

However, if there is no will or the testator left instructions that are not clear from a will (known as “testamentary trust”), then you may need to carry out probate administration in order to transfer assets from an estate and grant them to beneficiaries. Read on for more details about this process. 

If you are reading this article because a loved one has recently died and you are trying to figure out what comes next, we sincerely offer our condolences. 

This can be a difficult time, but rest assured that we have outlined all of your options below so that you can make informed decisions regarding their assets as well as final arrangements.

What Is Probate?

Probate is the legal process that is used to transfer property to beneficiaries and distribute assets to the executor of the estate. It is a court-supervised and regulated process that is typically required for any assets of value (such as real estate, stocks, retirement accounts, etc.) that are not held in trust. 

The probate process begins when the person dies and goes through the probate court where a representative of the estate files a petition with the court and serves the beneficiaries. The beneficiaries are usually named in the will and are notified of their rights and responsibilities to the estate. 

The court will then appoint the executor of the estate who is responsible for answering the probation petition and distributing assets according to the will of the testator.

What Is Trust Administration?

Trust administration can be used to transfer assets out of trust when the beneficiary dies. A trust is an agreement between two or more people or entities (such as a couple, or parents and children) that dictates how assets are to be managed and distributed. 

The trust agreement is outlined in a document that is filed with the probate court after the death of the trustor (the person who created the trust). The trust administration proceeds the same way as probate administration with the executor filing a petition with the court, serving the beneficiaries, and then distributing assets according to the trust agreement.

Why Is There a Need for Probate and Trust Administration?

While these procedures are necessary for transferring assets, they also make it more difficult to transfer assets quickly. 

The probate court and trusts don’t make it easy for individuals to quickly access assets, and so it is not uncommon for it to take months or even years to go through the probate and trust administration processes. 

Probate and trust administration are needed when the assets are not held in a trust and the testator was unable to determine how to distribute their assets through a will. In these cases, the probate court (and sometimes the trust court) is best equipped to determine who gets what from the estate.

Who Can Administer an Estate Through Probate?

Anyone who is over 18 years old and not under guardianship can be appointed as an executor through probate administration. There are a few exceptions, so make sure to check with your state’s probate court to see if you qualify. 

In order to be appointed as an executor, you will need to submit an application to the probate court and provide proof that you are suitable to carry out the duties of an executor.

What Are the Steps to Carry Out Probate?

You will need to go to the probate court where the decedent lived and file a probate petition. You will then be required to publish notice of the death in a local newspaper, known as the probate notice. 

You will need to provide documentation of the decedent’s assets and liabilities, including real estate, stocks, retirement accounts, vehicles, as well as outstanding debt. 

Once this process is complete, you will need to provide a detailed inventory of the decedent’s assets, a list of the decedent’s creditors, and a proposed distribution of assets to the court. 

If the court approves your petition, you will be appointed as the executor of the estate, and you will be required to write a probate inventory. 

This inventory is a list of the decedent’s assets and liens (debts) that are due. Once the inventory is filed with the court, you will need to begin collecting and distributing assets according to the will of the testator.

What Is Testamentary Trust Administration?

Testamentary trusts are used to distribute assets to beneficiaries. A testamentary trust is created by a will and can be used to distribute assets to beneficiaries at the death of the trustor. 

In some cases, the trustor may be terminally ill and decide to create a trust that distributes the assets after their death. In these cases, the trust administration proceeds after the death of the trustor, and the trustee of the will is responsible for distribution of assets according to the trust agreement.

How Does a Terminally Ill Person Benefit From a Living Trust?

A living trust is a trust that is created while the trustor is alive. It can be used to distribute assets to beneficiaries at the death of the trustor. 

In some cases, a terminally ill person may not want to go through probate administration because it could take a long time and be very stressful. A living trust is created when the person is healthy and still has the capacity to decide how to distribute the assets after death.

Key Takeaways

There are a few key takeaways from this article that can help you understand the probate and trust administration process better. 

First, probate is required when assets are not held in trust and the testator was unable to determine how to distribute their assets through a will. 

Second, trust administration can be used to distribute assets out of trust when the beneficiary dies. Third, a terminally ill person can benefit from a living trust because it can speed up the process of distributing assets after death. 

Probate and trust administration are necessary procedures that are used to transfer assets when the testator was unable to determine how to distribute their assets through a will. They are best suited for these purposes when the testator is terminally ill because it can speed up the process of distributing assets after death.

Call Probate Attorney, Trust Administration Attorney Doane & Doane Today 

At Doane & Doane, we understand the gravity of some of the decisions that go into estate planning. That’s why our estate planning attorney will make your experience one that’s comfortable and straightforward. Our job is to make your estate planning process as easy and as painless as possible. 

So get in touch with us today and let us know how we can best serve you. Doane & Doane Attorneys at Law is your trusted source for all of your estate planning needs. Call 561-656-0200 or contact us via our contact form to get started.

The information in this blog post is for reference only and not legal advice. As such, you should not decide whether to contact a lawyer based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.