San Diego Estate Planning Lawyer Blog
If you do not have a will, or better yet, a trust, your estate will be distributed according to the laws of “intestacy” set forth in the Probate Code. There may be a difference between how your estate is distributed according to your wishes and how it will be distributed pursuant to the Probate Code. Here are some disadvantages of intestacy you might want to consider:
1. The Court chooses the individual who will distribute your estate. The Court will appoint someone called the administrator to manage your assets and distribute them to your heirs at law. Maybe the person appointed is the person you would have chosen anyway but maybe not. Maybe two or more individuals will apply to the Court to be named administrator causing discord in the family.
2. The process of probate takes a long time. When you die without a will or a trust, the probate process here in San Diego typically can take a year or longer. The administration of a trust usually progresses much faster. If there are issues that need court intervention, the trustee can petition the Court for assistance, but most trust administrations are handled without going to court.
3. The Court may have to choose a guardian for your minor children. If you create a will or trust, you will name the person or persons you want to raise your children. Without an estate plan, the Court will determine who will be the guardian from those individuals who agree to be the guardian. Again more than one family member or friend may petition to be the guardian causing disharmony. The Court will have to make the determination without any input as to who you would have chosen.
4. With probate, rather than administration of a trust, it can be difficult to come up with money to pay debts, funeral expenses, or a family allowance. With a properly drafted revocable trust, these issues are spelled out clearly in the trust so that the individual distributing the trust (the trustee) can quickly take care of these issues.
At Scott C. Soady, A Professional Corporation, we handle both probate and trust administration as well as custom revocable living trusts to fit your needs. Call us for assistance with these or any other estate planning needs.