Some people think that if they have a will, then when they die, everything will go instantly and automatically to their kids (or their spouse, or…) just like they stated in their will, period. It is just not that simple.
One of many judgment articles: I am a Judgment Broker, not a lawyer, and this article is my opinion based on my experience, please consult with a lawyer if you need legal advice.
When someone dies, with or without a written will, their belongings must usually go through a probate court first, prior to being passed on to the named person(s) listed in the will. Think of probate as proving to the court, the ownership status of the deceased person’s possessions.
Just because Dad’s will says Frank gets the house and Cindy gets the Jaguar, does not mean that the day after Dad dies, Frank and Cindy immediately get them, or any other possessions listed in Dad’s will.
First, it must be proven in probate court that Dad actually owned both the house and the Jaguar, free and clear. The actual checking of ownerships is done by the Executor (as named in the will) or the Administrator (that will be appointed by the court when there is no written will).
The executor or the administrator, files documents with the court identifying the legal titles, and whether all liens and/or loans have been cleared on the listed possessions. After it is proven in court that Dad solely owned all the possessions listed in his will, then the court looks at the will for the disbursement instructions for the possessions.
If an estate is small, then there is no need to probate the deceased’s estate. The estate dollar amount limit, varies over time and by state. In California, the limit is currently $150,000. If the estate is smaller than the state limit, then the affected parties can skip probate court.
Probate court records are public records. Anyone can go into a state court and view probate records. One can even look up celebrities or anyone else and see who got what.
To avoid the expense and public disclosure possibilities of the probate court process, many people with lots of assets set up a revocable living trust; and transfer ownership of most of what they own into that trust.
When you look for a property deed at the recorder’s office and it says Jack Rogers and Sally Rogers owned the house as husband and wife, but they transferred title to Jack Rogers and Sally Rogers; Trustees of the Rogers Family Trust dated June 5, 2014, you will know they have a trust. Most likely it will be a revocable living trust. Revocable trusts can be changed at any time.
Properly set-up trusts usually bypass probate courts because they have already “proven title” to the estate’s property. Properly set up trusts can keep an estate out of the public records, a potentially important privacy feature.
People with their assets in the name of their trusts may also have a will, for anything they may have forgotten to put into their trusts. Revocable living trusts are not a separate legal entity apart from the trustees, because person(s) own each asset in the trust. This means assets in such trusts are not shielded from judgment creditors.
Trusts and probate are complex subjects, and this article is a summary of how things usually work. Of course, there are many exceptions, lots of red tape, and legalese too. When recovering a judgment, the divorce and probate court records are a wealth of information.