Wills are some of the most common estate planning documents. However, if your family cannot find the will after your loved one passes away, it can pose a real challenge.
As we discussed in Part One of this series, Californians cannot file a will with a court before death. This applies to either a handwritten will or a typed will prepared by their attorney. Therefore, one must generally leave instructions on where your family or named executor can find the will.
Trying to find a will without any instructions can be incredibly challenging. Imagine your family rushing to search for a will that may not even exist.
Trusts may be easier to find than wills
Trusts, however, have somewhat different considerations and may be easier to be found than wills. Even if there are no specific instructions informing you that a trust was prepared by your loved one and there is no information about where the trust may be or who prepared it, there may be ways to find out if a trust was prepared and hopefully a signed copy can be found.
For example, if the decedent had real property, it is possible to search local property records by entering the address of your loved one, or his or her name, to find out if he or she was holding title in his or her own name as trustee of his/her trust. The deed my show the name of the attorney who prepared the trust transfer deed, and you can contact the attorney’s office to see if you can obtain a copy of the trust. The notary information may also be helpful.
Searching public records under the decedent’s name may help to locate a trust. For example, if the trust earns income in any way, the successor trustee may have filed a trust income return with the Internal Revenue Service (IRS). The history of these reports and records may help families locate the trust.
Trust administration might be easier as well
Most trust administration is a much quicker and easier process than a probate matter is. A probate must be established if the decedent’s assets held in his or her name at death without beneficiary designations are greater than $184,500 in California (will or no will) and the probate matter may take several years in court.
It is important to fully understand the details of trusts, and how a trust may benefit you and your family. With property transferred to the trustee/successor trustee of your trust, the trustee/successor trustee will administer the real property during a loved one’s disability and distribute the trust assets to the trust beneficiaries, within a short time period, unless the trust provides for a specific (longer) length of time.
Meanwhile, any real property, or other assets in the decedent’s name alone, will have to go through the probate process to transfer ownership via court order. That is why trusts are often a tool people use to avoid probate. And if families cannot find the will, a properly funded trust will avoid probate via intestate succession.