By Jane McNamara, Elder Law Attorney 

Over the last decade or so, living trusts have become increasingly popular and an effective estate planning tool for many people.  The benefits of living trusts are touted throughout the media and in legal circles.  But, what happens if you have a relatively small estate?  Is a living trust necessary?  In this mini-series, we will examine some alternatives to living trusts and eliminate some of mysteries surrounding the probate process. 

The Will:  Perhaps a properly drafted Will is the right estate planning tool for you.  Your Will directs how your property is to be distributed and names who is responsible for distributing it, among other things.  However, people are often under the misconception that if they have written a Will, this eliminates the need for probate?  The size of the decedent’s estate and how title to your assets is held also determine the ultimate distribution to your beneficiaries.  

For instance, dear Aunt Mabel has died.  She mentioned to you recently that you are named as EXECUTOR of her Will so that you will be able to distribute her assets according to her wishes.  You have determined that title to her assets (all cash accounts) is in her name only.  Her assets total approximately $150,000.  Even though Aunt Mabel had a Will, probate (the legal process by which a decedent’s estate is administered) of her estate is necessary. 

Under the guidance and direction of a reputable probate attorney and his/her support staff, the probate process does not have to be daunting.  Once you are appointed executor, you will collect the decedent’s assets and pay the estate’s liabilities, including any creditors of the estate and any taxes due.   When you have completed these tasks and a minimum of four months from the date of your appointment as executor has passed, you may petition the court for final distribution of the estate.  Realistically, Aunt Mabel’s estate can be administered and distributed in approximately six to seven months’ time.

What will it cost to administer Aunt Mabel’s estate?  The filing fee in Los Angeles Superior Court is currently $272; the cost of publication announcing the administration of the estate is about $200; certified copies of documents approximately $20; attorney’s fees about $5,500 and executor’s commissions (if you choose to take them) about $5,500.

Although the cost of probate may seem excessive to some, through court supervision, your last wishes have been fulfilled.